Calcutta High Court (Appellete Side)

Murari Purkait vs The Shikharbali Gram ... on 1 December, 2022

   D/L
Item No. 3
01.12.2022
 KOLE
                                MAT 1518 of 2022
                                     With
                              IA No. CAN 2 of 2022

                              Murari Purkait
                                   -Vs.-
                    The Shikharbali Gram Panchayat-II & Ors.

             Mr. Partha Sarathi Bhattacharyya, Sr. Adv.
             Mr. K. Chowdhury,
                                                     ... for the appellant.

             Mr. Mahim Sasmal,
                                                 ... for the respondent no. 2.

Mr. Malay Krishna Dey, Mr. Subrata Ghosh, ... for the State.

Mr. Kollol Basu, Mr. Srikanta Paul, Mr. Samik Sarkar, ... for the respondent nos. 10 to 12.

By consent of the parties the appeal and the

application are taken up for hearing together.

A judgment and order dated July 13, 2022, whereby

WPA 13763 of 2021 was disposed of by a learned Single

Judge, is the subject matter of challenge in this appeal.

It appears that the appellant had applied to the

concerned Gram Panchayat for sanction of a building plan.

Such sanction was granted. Subsequently, by an order

dated July 11, 2014, the Pradhan of the Gram Panchayat

revoked the sanction and cancelled the building plan. Such

revocation order was challenged by the appellant by filing

WP No. 24625 (W) of 2014. That writ petition was disposed

of by a learned Single Judge of this Court by an order dated

September 17, 2014, the operative portion whereof reads as

follows:-

"I have heard the learned Counsel appearing for the respective parties and I have considered the facts and circumstances of the case. Admittedly, the impugned order was passed canceling a building plan sanctioned in favour of the petitioner to raise construction on the plot of land under reference. The impugned order was passed by the respondent no. 5, Pradhan of the Gram Panchayat concerned.

After considering the provisions of Section 23 of the West Bengal Panchayat Act, 1973, I find that the Gram Panchayat concerned was the competent to pass the impugned order.

In view of the above, I find that the impugned order was passed by the respondent no. 5 without jurisdiction and the same is quashed and set aside.

This will not, however, prevent the respondent no. 4 to take steps afresh in respect of the building sanctioned plan under reference in accordance with law."

Pursuant to the liberty reserved in such order, the

Pradhan in charge of the Gram Panchayat issued a notice of

hearing to all concerned parties including the appellant and

the writ petitioners herein. Such notice was issued on

behalf of the Gram Panchayat. Hearing was held. The

appellant and the writ petitioners attended the hearing along

with their respective representatives. All the members of the

Gram Panchayat were present at the hearing. As the order

dated 09.11.2015/1611.2015 shows, all the present members

of the Gram Panchayat unanimously came to a conclusion

that the appellant herein had made gross misrepresentation

while applying for sanction of the concerned building plan.

The members of the Panchayat unanimously decided that

the sanction should be withdrawn, the building plan should

be cancelled and the construction made on the basis of such

building plan should be demolished.

Since effect was not given to the said order of the

Gram Panchayat, the present writ petitioners approached

the learned Single Judge by filing WPA 13763 of 2021. By

the order impugned in this appeal, the learned Judge

directed the Sub-divisional Officer, Baruipur "to ensure that

the order passed by the Pradhan-in-Charge, Sikharbali Gram

Panchayat-II is duly executed at the earliest. The sub

Divisional Officer shall, if required, take the assistance of the

Inspector-in-Charge, Baruipur Police Station at the time of

demolition of the unauthorized construction." The Sub-

divisional Officer was directed to execute the demolition

order within sixty days from the date of communication of

the learned Judge's order. The present appellant, who was

the respondent no. 10 in the writ petition, was restrained

from interfering with the demolition process. Being

aggrieved, the respondent no. 10 in the writ petition has

come up by way of this appeal.

Appearing for the appellant Mr. Bhattacharyya,

learned Senior Counsel, argued that the order of demolition

is without jurisdiction. In the scheme of Section 23 of the

West Bengal Panchayat Act, 1973, it is the Gram Panchayat

which can sanction a building plan and as a corollary can

revoke a building plan on adequate grounds. The Pradhan is

not the authority. The Pradhan cannot sanction a building

plan or revoke the sanction. In the present case, the

Pradhan in charge has signed the order for revocation of the

permission and demolition of the concerned construction.

The communication of the order is also by the Pradhan and

not by the Gram Panchayat. Hence, the order is without

jurisdiction and, therefore, void. Mr. Bhattacharyya has

drawn to our attention Rules 26 and 27 of the West Bengal

Panchayat (Gram Panchayat Administration) Rules, 2004.

We have not called upon the respondents to make

submission.

We have gone through the reasoned order dated

09.11.2015/16.11.2015, whereby the concerned building plan

that had been sanctioned in favour of the appellant, was

cancelled and the appellant was called upon to demolish the

impugned construction, failing which the appropriate

authority would carry out such demolition work. It is clear

from the body of the order that the notice of hearing was

issued by the Pradhan in charge on behalf of the Gram

Panchayat and not in his individual capacity as Pradhan in

charge. The hearing was also held before the members of the

Gram Panchayat and not only before Pradhan in charge.

The decision to revoke the sanction of the concerned

building plan and direction to the appellant to demolish the

impugned construction was also taken by the members of

the Gram Panchayat unanimously and not by the Pradhan in

charge alone. It is true that the order was signed by the

Pradhan in charge but he did so on behalf of the Gram

Panchayat. In our view, as the Pradhan he was competent to

do so, and the provisions of Section 34 of the West Bengal

Gram Panchayat Act, 1973 would support this view. That

Section enumerates the powers, functions and duties of the

Pradhan and Upa-pradhan. Section 34 (1)(d) reads as

follows:-

"34(1)(d). for the transaction of business connected with this Act or for purpose of

making any order authorized thereby, exercise such powers, perform such functions and discharge such duties as may be exercised, performed or discharged by the Gram Panchayat under this Act or the rules made thereunder:

Provided that the Pradhan shall not exercise such powers, perform such functions or discharge such duties as may be required by the rules made under this Act to be exercised, performed or discharged by the Gram Panchayat at a meeting;"

Further, Rule 27(4) of the 2004 Rules referred to

above provides as follows:-

"27 (4). As soon as may be, after the Gram Panchayat grants or refuses permission under sub-rule (1), the Pradhan or the Upa-Pradhan or the person authorized in this behalf shall communicate in writing to the applicant of the permission granted for the construction sought for or the refusal in this behalf, as the case may be. In case of permission, one approved copy of the building plan and of the site plan shall be returned to the applicant, and the date within which the erection or construction is to be completed, shall be communicated. The applicant shall be informed of the grounds of refusal and further actions that may be taken by him in this regard."

Therefore, there is no irregularity in the Pradhan

communicating the order of cancellation of sanction and the

order of demolition to the appellant herein.

We do not find that the demolition order,

implementation of which the learned Single Judge has

directed, is without jurisdiction. The decision contained in

the order is that of the Gram Panchyat and not of the

Pradhan in charge. Since the said order has not been

interfered with by any competent higher forum, the learned

Judge committed no error in directing that the order must

be carried out. We find no infirmity in the order under

appeal which does not warrant interference on any ground.