Sabita Nandy vs The State Of West Bengal & Others
2022 Latest Caselaw 4260 Cal

15.07.2022
Item No.1
Court No.6.
   AB
                                M.A.T. 1077 of 2022
                                        With
                                 I A CAN 1 of 2022

                                 Sabita Nandy
                                      Vs
                       The State of West Bengal & Others

                    Mr. Rupayan Deb,
                    Mr. Samit Bhanja,
                    Mr. Goutam Misra            ...for the Appellant.

                    Mr.    Sirsanya Bandopadhyay,
                    Mr.    Arka Kumar Nag,
                    Mr.    Tirthankar Dey,
                    Mr.    Souvik Roy        ...for the Corporation.

                    Mr. Rahul Karmakar,
                    Ms. Gargi Goswami,
                    Ms. Piyashi Chakraborty,
                    Ms. Sibangi Chattopadhyay
                                        ...for the Respondent No.9.

By consent of the parties, the appeal and the

application are taken up for hearing together.

Affidavit of Service filed in Court today be kept

on record.

This is an appeal from a Judgment and Order

dated July 11, 2022 passed in WPA No.6780 of 2022.

The writ petition is still pending.

The private respondent/writ petitioner

approached the learned Single Judge with the

grievance that although an order was passed by the

Commissioner of the Bidhannagar Municipal

Corporation (BMC in short) on January 12, 2018, for

demolition of unauthorized portion of the construction

made on the adjoining plot by the private respondent

in the writ petition, such demolition order has not

been implemented. The learned Judge noted the

deviations made from the sanctioned plan in the

impugned construction as recorded in the order of the

Commissioner.

It was submitted before the learned Judge by the

present appellant that an appeal had been preferred

against the demolition order before the Mayor of the

Corporation. The learned Judge recorded that

according to Section 266(3) of the West Bengal

Municipal Corporation Act, 2006, an appeal from an

order of the Commissioner would lie before the

Municipal Building Tribunal appointed under Section

295A.

The learned Judge also noted that July 12, 2022

had been fixed as the date for demolition. The learned

Judge directed the demolition to proceed as scheduled

and has made the matter returnable on July 18, 2022

before Her Lordship.

We have heard learned Counsel for the parties.

Learned Advocate appearing for the appellant

vociferously argued that his client was not given an

opportunity of hearing before the order of demolition

was passed. This was in gross breach of the principles

of natural justice.

We are not impressed with the submission made

on behalf of the appellant. The appellant did not

challenge the order of the Commissioner before the

learned Single Judge. The writ petition was filed for

implementation of the order of the Commissioner,

which was passed way back on January 12, 2018. The

appellant says that she has filed an appeal before the

Mayor. We do not see how such appeal is

maintainable. In any event, it is the appellant's choice

how to assail the order of the Commissioner.

We are of the view that the learned Single Judge

correctly directed implementation of the order of the

Commissioner, which lies unimplemented for a long

period of time.

The learned Advocate for the Corporation says

that every time an attempt was made to implement the

order, there was resistance from the appellant and her

family members. On one pretext or the other, the

appellant has successfully stalled implementation of

the order of demolition till date.

Mr. Bandopadhyay, learned Advocate

representing the Corporation says that this appeal is a

continuation of the writ petition filed by the private

respondent in this appeal and in this proceeding, the

appellant cannot challenge the demolition order of the

Corporation. He is right.

We find no infirmity in the order of the learned

Single Judge. The appellant had enough time to

challenge the Commissioner's order of demolition

before the appropriate forum and get the order set

aside if she could. We are not inclined to interfere with

the impugned order.

In the event, the Officer-in-charge of the

Jurisdictional Police Station is approached by the

Officers of the Corporation for assistance in

implementing the order of demolition, the Officer-in

charge shall extend all cooperation in that regard.

Since we have not called for affidavits, the

allegations in the stay application are deemed not to

be admitted by the respondents.

Accordingly, MAT No.1077 of 2022 fails and the

same is hereby dismissed along with IA CAN 1 of 2022.

Urgent photostat certified copy of this order, if

applied for, be supplied expeditiously after compliance

with all the necessary formalities.

(Rai Chattopadhyay, J.) (Arijit Banerjee, J.)