Calcutta High Court (Appellete Side)
Sri Ajay Nath Yadav @ Ahiri vs The State Of West Bengal & Ors on 25 February, 2022
02. 25.02.2022
Ct. No.06
Tanmoy
F.M.A. 3553 of 2015
(M.A.T. 1374 of 2015)
With
IA No: C.A.N. 1 of 2015 (Old No: C.A.N. 9576 of 2015)
With
IA No: C.A.N. 2 of 2021
Sri Ajay Nath Yadav @ Ahiri
-Versus-
The State of West Bengal & Ors.
(Through Video Conference)
Mr. S. Sarkar, Adv.,
Mr. Ayan Dutta, Adv.,
Mr. Anjan Bhattacharya, Adv.
...for the appellant.
Ms. Manjuli Chowdhury, Adv.,
Ms. Mekhla Sinha, Adv.
...for the Howrah Zilla Parishad.
Affidavit of service filed in Court today, be kept with
the record
By consent of the parties, the appeal and the
connected applications are taken up together for hearing.
This is an appeal against a judgment and order
dated July 16, 2015 whereby W.P. No. 32118(W) of 2014
was disposed of. The operative portion of the impugned
judgment and order reads as follows:-
"Be that as it may, the clock cannot be put
back. There is no point in keeping the petiton
pending. The writ petition is disposed of by directing
the District Engineer, Howrah Zilla Parishad, to take
all possible steps againt the unauthorized
construction made by the private respondent
including the deviation, if any, from the sanctioned
building plan in accordance with law and the
procedure laid down therefor.
A notice to that effect is to be issued within two
weeks from the date of communication of the order.
The Howrah Zilla Parishad is directed to take
appropriate follow-up action. The police authorities
are directed to render all possible assistance, if
necessary. The cost of this police assistance shall be
borne by the petitioner. In any case the Howrah Zilla
Parishad is directed to see to it that the private
respondent does not continue with the unauthorized
construction which has been found by them on
enquiry. the entire exercise shall be completed within
a period of ten weeks from the date of the issue of
notice to the private respondent."
The private respondent no.6, who is the appellant
before us, says that after passing of the impugned order,
the appellant has made a representation dated December
28, 2015, to the District Engineer, Howrah Zilla Parishad,
Howrah. Learned Counsel submits that the
representation may be considered and disposed of in
accordance with law and the applicable bye-laws. If such
an order for consideration is passed, the appellant would
not proceed with the appeal further.
Our attention has been drawn to the relevant bye-
laws. It appears that the Zilla Parishad has discretion to
regularize unauthorized constructions and constructions
made in deviation from the sanctioned plan. Needless to
say, such discretion must be exercised judiciously and
not arbitrarily.
We are also told that presently it is the Building
Committee which is the Authority for considering whether
a structure can be regularized or not.
Accordingly, we direct the Building Committee of the
Howrah Zilla Parishad to consider the appellant's
representation dated December 28, 2015 and take a
reasoned decision thereon, in accordance with the
applicable bye-laws and the law in general, within a
period of eight weeks from the date of communication of
this order to the Building Committee, after giving an
opportunity of hearing to the appellant or his authorized
representative. The decision so taken, shall be
communicated to the appellant within a week from the
date of the decision. Needless to say, if the Building
Committee finds that the impugned construction cannot
be regularized, necessary follow-up action shall be taken
by it.
The appeal being F.M.A. 3553 of 2015 and the
connected applications being IA No: C.A.N. 1 of 2015 (Old
No: C.A.N. 9576 of 2015) and IA No: C.A.N. 2 of 2021 are
accordingly disposed of.
Let urgent photostat certified copies of this order, if
applied for, be supplied to learned Advocates for the
parties upon compliance with all usual formalities.
(Kausik Chanda, J.) (Arijit Banerjee, J.)
