Judgment · High Court

Heard Mr. Pallabh Bhowmick, learned counsel for the petitioner. Also heard Ms. B .Das, learned Govt. Advocate, appearing for respondents No.1 to 4. There is no r epresentation for the private respondent No.5. By filing this application the writ petitioner is seeking a direction to the authorities concerned to take appropriate steps to remove and dismantle una uthorized illegal construction undertaken by the private respondent No.5 which h as been described in schedule-A to the writ petition. In paragraph 10 of the wri t petition it has been stated that (cid:28)under the Principles of Easement and Prescri ption with the Rules of Law, and that of the relevant Rules of constructions etc. under the Town and County Planning Act/Rules, there ought to be a gap of 5’ ft in between the contiguous land of different occupiers at the grounds, and th e overs/airs thereof so that no inconveniences are caused to any of them by maki ng construction in breach of the aforesaid principles of Rules either on the gro und or above, and that the making of constructions in such violation amounts to committing the offence of trespass of the land of air as the case may be. (cid:29) As per statements made in this writ petition the alleged construction wa s undertaken sometime in January, 1999 by the respondent No.5 without leaving 5 ’ ft from the boundary in violation of the existing Rules. The private respondents reverted the allegation made by the petitioner. No counter affidavit has been filed by the State-Respondents. However, Responden t No.4, the Officer-In-Charge, Dibrugarh Police Station filed an affidavit stati ng amongst others that he did not receive copy of the writ petition. However, in paragraph 3 of his affidavit he has categorically stated that on enquiry from t he petitioner he found that Title Suit No.16/99 was filed by the petitioner agai nst private respondent No.5 Sri Naresh Dey in the court of Munsiff No.1, Dibruga rh. He has not, of course, intimated the result of the said Title Suit. From the affidavit of the respondent No.4 it is found that the matter wa s taken to the Civil Court for adjudication. Since the matter involves disputed fact, which required to be settled by the civil court, and in fact, the civil su it was filed by one of the parties, this writ petition has become infructuous an d accordingly it is dismissed as infructuous. No costs.