Bivabati Sadhukhan & Others vs The State Of West Bengal & Ors
2022 Latest Caselaw 7850 Cal

28.11.2022
Item No.20.
Court No.6.
   AB
                               F.M.A. 1097 of 2019

                          Bivabati Sadhukhan & Others
                                       Vs
                         The State of West Bengal & Ors.

                    Mr. Ujjal Kr. Ray         ...for the Appellants.

                    Mr. Alok Kr. Ghosh,
                    Ms. Sima Chakraborty...for the K.M.C.

                    Mr. Saptangshu Basu, Sr. Adv,
                    Mr. N. C. Bihani ...for the Private Respondent

No.8 and 9.

This appeal is directed against a Judgment and

Order dated July 12, 2018, whereby the appellants'

writ petition being W. P. No.27316 (W) of 2015 was

dismissed.

The appellants had approached the learned

Single Judge alleging infraction of Building Rules by

the private respondents and also seeking cancellation

of the building plan that had been sanctioned in

favour of the private respondents in respect of

premises no.6/1, Shyampukur Lane, Kolkata -

700004.

The learned Judge observed that the sanctioned

building plan is not on record and the so-called

infraction of the Building Rules has not been specified.

Accordingly, the learned Judge dismissed the writ

petition without entering into the merits thereof. Being

aggrieved, the writ petitioners are before us by way of

this appeal.

Mr. Basu, learned Senior Counsel representing

the private respondents has drawn our attention to

paragraph 4 of the supplementary affidavit affirmed on

behalf of the private respondents on April 22, 2022,

which reads as follows:

"4. That a proceeding was undertaken under Sections 400(1) and 416 of the Kolkata Municipal Corporation Act of 1980, being Demolition Case No.41-D/Bldg/Br-II/16-17. An Order was passed by the Deputy Chief Engineer (Bldg)/North dated March 24, 2017. A Retention Order was, inter alia, passed in respect of the impugned unauthorized construction subject to compliance of certain pre condition stated therein. Furthermore, no Order was passed for stopping the impugned change of use subject to compliance of certain pre conditions stated therein."

Since a proceeding under Section 400(1) of the

Kolkata Municipal Corporation Act, 1980, read with

Section 416 thereof, was initiated against the private

respondents and since the same has culminated in a

final order dated March 24, 2017, the present appeal

has really become infructuous. If the appellants are

aggrieved by the order dated March 24, 2017, they

would be at liberty to challenge the same before the

appropriate forum in accordance with law.

Insofar as the cancellation of the sanctioned

plan is concerned, that is not a prayer that the Writ

Court should entertain at the first instance. Section

397 of the Kolkata Municipal Corporation Act, 1980,

provides the appellants with a sufficient remedy.

We have not gone into the merits of the case at

all. If the appellants challenge the legality/validity of

the building plan sanctioned in favour of the private

respondents or if they challenge the order dated March

24, 2017, passed by the Deputy Chief Engineer

(Building), North, in the proceedings under Sections

400(1) and 416 of the Kolkata Municipal Corporation

Act, 1980, against the private respondents, the same

would be decided without being influenced by any

observation in this order or in the order of the learned

Single Judge.

F.M.A. No.1097 of 2019 is, accordingly, disposed

of.

Urgent photostat certified copy of this order, if

applied for, be supplied expeditiously after compliance

with all the necessary formalities.

(Apurba Sinha Ray, J.) (Arijit Banerjee, J.)