Calcutta High Court (Appellete Side)
Mounonil Prasad Mitra vs The State Of West Bengal & Ors on 13 December, 2022
13.12.2022
Item No.13
Court No.6.
S. De
M.A.T. 1525 of 2022
with
I.A. No. CAN/1/2022
Mounonil Prasad Mitra.
Vs
The State of West Bengal & Ors.
Mr. Debajyoti Basu,
Ms. Reshmi Mukherjee,
...for the appellant.
Mr. Rudranil De,
Mr. Monoranjan Mahata,
...for the State.
By consent of the parties, the appeal and the
connected application are taken up together for
hearing.
This appeal is directed against a judgment and
order dated August 2, 2022 whereby the appellant's
writ petition being WPA 16146 of 2021 was disposed
of.
The appellant had approached the learned
Single Judge with the grievance that the respondent
no.8 had made illegal and unauthorized construction.
An interim order was passed by the learned Judge on
May 18, 2022, the relevant portion whereof reads as
follows :-
"The allegation is of unauthorized
construction by the respondent no.8.
Thus, in this case, as the
respondent no.8 is not present
before this Court, the Court deems it
fit that the municipality shall make
an inspection of the entire plot of
lands situated at 339/5 P.L.
Ashoke Nagar as also 411/5 P.L.
Ashoke Nagar in order to ascertain
whether constructions thereon have
been made by the parties upon
permission from the authority or
not. The nature and extent of the
construction shall also be reflected
in the report. Such report shall be
filed on June 23, 2022, when the
matter will appear next under the
same heading. The inspection shall
be held with notice to the parties.
Such direction is being passed in
order enable the Court to ascertain
the exact dispute between the
parties and whether the petitioner
has approached the Court with
clean hands."
A report, as directed, bearing date June 18,
2021, was filed by the Chairman of the Ashokenagar-
Kalyangarh Municipality. The relevant paragraphs of
the said report reads as follows :-
"The said Susmita Mukherjee has
made are unauthorised and illegal
construction of about 854 Sq.ft.
without the approval of said
Ashokenagar-Kalyangarh
Municipality. At present the said
land was mutated and recorded in
the name of Biswanath Saha, S/0
Nripendra Mohan Saha, in the office
of B.L.&L.R.O.
The said Mounanil Prasad Mitra
has made one unauthorized and
illegal construction of about 18'.6 x 9'
=178.56 Sq.ft. without the approval of
said said Ashokenagar-Kalyangarh
Municipality."
When the matter came up before the learned
Single Judge for final disposal, the learned Judge
passed the order which is the subject matter of
challenge in this appeal. The material portion of the
order under challenge reads as follows :-
"It appears from the report of
the Municipality filed by the
Chairman signed on 18th June,
2022 that there exists
unauthorized construction at the
subject premises.
It will be open for the
Municipality to take steps against
any unauthorized construction that
exists on the said plot of land.
Steps may be taken in the
matter strictly in accordance with
law, by giving a reasonable
opportunity of hearing to the
necessary parties at the earliest
and the Municipality shall pass a
reasoned order and communicate
the same to the parties positively
within a period of twelve weeks
from the date of communication of
a copy of this order.
The Municipality shall
restrict their action with regard to
unauthorized construction only and
not enter into or decide any private
dispute of the parties regarding
right, title and interest in respect of
the aforesaid land."
Being aggrieved, the writ petitioner is before us
by way of this appeal.
Mr. Basu, learned advocate appearing for the
appellant/writ petitioner has made submission at
length trying to impress upon us that the Municipality
is colluding with the private respondent. Naturally, we
are not inclined to go into such allegations.
It appears that pursuant to the order of the
learned Single Judge which is under challenge, the
Chairman of the Municipality held a hearing on
September 3, 2022 which was attended by both the
appellant and the private respondent. Both the parties
made their submission before the Chairman. The
Chairman has passed an order on September 16, 2022
directing both the appellant and the private
respondent to demolish the unauthorized construction
made by them.
The appellant has filed an exception to such
order. We are, however, of the view that the order of
the learned Single Judge which is appealed against,
has been worked out culminating in the order dated
September 16, 2022 passed by the Chairman of the
said Ashokenagar-Kalyangarh Municipality. If the
appellant is aggrieved by the said order, it would
furnish him with a fresh cause of action. Needless to
say, the appellant would be at liberty to challenge the
said order of the Municipality before the appropriate
forum in accordance with law.
Since the Municipality has already acted in
terms of the order impugned, nothing survives of the
challenge to the said order of the learned Single Judge.
M.A.T. 1525 of 2022 is, accordingly, disposed of
along with the application being I.A. No. CAN 1 of
2022.
Interim order, if any, stands vacated.
Urgent certified photostat copy of this order, if
applied for, shall be given to the parties as
expeditiously as possible on compliance with all the
necessary formalities.
(Apurba Sinha Ray, J.) (Arijit Banerjee, J.)
