Ct. 8 Nemai Candra Das & Anr vs Baidyabishal Pal
2022 Latest Caselaw 236 Cal

SA 117 of 2021 Item-4 CAN 1 of 2021 31-01-2022 sg

Ct. 8 Nemai Candra Das & Anr.

Versus Baidyabishal Pal

(Through Video Conference)

Mr. Partha Pratim Roy, Adv.

...for the appellants

The appeal is arising out of affirmation of the judgment and

decree of the learned Civil Judge (Junior Division), First Court at

Kandi in Title Suit No. 129 of 2012 in a suit for declaration as well as

permanent injunction and mandatory injunction.

We have heard the learned Counsel for the appellants in

support of this appeal.

The suit is arising out of an allegation that the defendant has

made certain unauthorized construction in the first floor of the 'kha'

scheduled property and installed windows in the northern side of the

'kha' scheduled property situated on the ground floor without any

permission from the plaintiff and in violation of the agreement

between the parties that the defendant shall not install any window in

the northern side of the 'kha' scheduled property. The evidence before

the learned Trial Judge would unmistakably show that the plaintiff in

his evidence has admitted that he had authorized the defendant to

make certain constructions which may not strictly be in accordance

with the Panchayat Rules and thereafter, the plaintiff has filed a suit

alleging illegal conduct of the defendant.

The learned Trial Court assessed the report of the Survey

Commissioner and held that the defendant has installed window on the

northern portion of the plot No. 765, which thereby causing the family

privacy of the house of the plaintiff endangered and the plaintiff may

be at liberty to block the aforesaid window of the defendant by raising

the wall in order to block the said window.

The learned Trial Court was of the view that the Survey

Commissioner was not competent enough to submit report as to

whether the family privacy of the family of the plaintiff would be

endanger due to installation of the windows at plot no.768 that is in the

northern side of the land of the defendant. Moreover, during cross-

examination, it was revealed that the height of the window of the plot

765 is 3.5 feet and even there is a wall on the southern side of the

plaintiff's house i.e. in the northern side of the house of the defendant

in which the defendant is trying to install the window as per the

version of the plaintiff.

The learned Trial Judge, on the basis of the evidence, arrived at

a finding that the plaintiff failed to adduce any evidence to show that

due to installation of the aforesaid window in the northern side of the

house of the defendant, the privacy of the plaintiff would be at stake,

apart from the fact that the plaintiff had permitted such construction to

be raised which may be in contravention of the Panchayat Act.

The First Appellate Court while affirming the order of the

learned Trial Judge had noted that the defendant did not approach the

Panchayat to obtain sanction before making construction on his land in

terms of Section 23(1) of the West Bengal Panchayat Act. The First

Appellate Court on re-appreciation of the evidence, observed that the

defendant had encroached a portion vertically on the land of the

plaintiff. The defendant had admitted the fact that he made ground

floor and first floor constructions without taking permission from the

Panchayat authority. The First Appellate Court was of the further

opinion that no agreement by any person can validate the illegality

under the law of the land. The defendant did not take any legal

permission from the competent authority of the Gram Panchayat.

However, taking note of the fact that the Commissioner's

report said that the defendant did not encroach any portion of the

plaintiff's land, this Court may not be in a position to direct demolition

of any construction, which appears to be illegal and the plaintiff may

be directed to approach the competent authority under the West

Bengal Panchayat Act for such demolition order. In the instant suit,

the competent authority under the West Bengal Panchayat Act was not

made party. But what is relevant is the conduct of the parties in

relation to the suit property when a finding is arrived at that there is no

encroachment on the plot of the plaintiff.

The question arises whether the defendant had made any

construction in violation of the sanctioned plan. If the Panchayat

authority would have been impleaded as party, this issue could have

been decided in the suit itself. In absence of the Panchayat authority,

in our view, both the Courts have rightly held that the plaintiff should

have approached the Panchayat authority for demolition of the alleged

unauthorized construction upon being established that such

construction is illegal or that it has been raised in contravention of the

West Bengal Panchayat Act. The issue whether such construction

should be regularized would also be a relevant consideration in that

proceeding.

In view thereof, we do not find any reason to admit the second

appeal. The appeal, being SA 117 of 2021 stands dismissed. The

connected application, being CAN 1 of 2021 is accordingly, disposed

of. However, there shall be no order as to costs.

Urgent photostat certified copy of this order, if applied for, be

supplied to the parties upon compliance of all requisite formalities.

 (Ajoy Kumar Mukherjee, J.)                         (Soumen Sen, J.)