Kanai Prasad vs The State Of West Bengal & Ors
2022 Latest Caselaw 6407 Cal

09.   08.09.2022
       Ct. No.6
      Tanmoy


                                         F.M.A. 306 of 2022

                                          Kanai Prasad
                                             -Versus-
                                 The State of West Bengal & Ors.

                                               With
                                      IA No: C.A.N. 1 of 2021




                           Mr. Uday Shankar Bhattacharya, Adv.,
                           Mr. Mrityunjay Saha, Adv.

                                               ...for the appellant.

                           Ms. Tanushree Dasgupta, Adv.

                                               ...for the K.M.C.


                           Affidavit of service filed in Court today be kept with

                   the records. In spite of service neither the State, nor the

                   private respondents have appeared even in the second

call.

By consent of the appearing parties, the appeal and

the connected application are taken up together for

hearing.

A judgment and order dated September 28, 2021,

whereby the appellant's writ petition being W.P.A. 9080

of 2020 was in effect, dismissed, is under challenge in

the present appeal.

The appellant/writ petitioner contended before the

learned Single Judge that he is a tenant under the

private respondent no. 10. The private respondents are

making construction in the premises in question where

the appellant resides as a tenant under the private

respondent no.10. The sanctioned Building Plan

obtained by the private respondents does not conform to

the provisions of law. It has been sanctioned in breach of

the relevant provisions of the Kolkata Municipal

Corporation Building Rules, 2009.

The learned Single Judge noted that a suit being

Title Suit No.164 of 2016 is pending between the parties

in respect of the same property. The learned Judge

disposed of the writ petition with the following

observations:-

"The allegation that the construction has caused an obstruction to the use of the tenanted property and exercise of the tenancy rights of the petitioner cannot be decided in the writ proceeding. The writ proceeding can only be restricted to the allegations of inaction or non- action on the part of the Kolkata Municipal Corporation. In this case, the allegation in the writ petition and the pleadings do not reveal that there has been any infraction of law by the Kolkata Municipal Corporation. Whether the landlord has been constructing in a particular way that the tenant's enjoyment of the tenanted portion has been hampered, is a landlord tenant dispute and must be decided in an appropriate civil proceeding. Restrictive and preemptive orders, if any, may be passed by the civil court in this situation, upon satisfaction of the facts in dispute. Thus, this writ petition is disposed of without any orders. This order shall not prevent the petitioner from availing all remedies available under the law and the appropriate forum will deal with the issues without being influenced by this order."

Being aggrieved the writ petitioner is before us by

way of the present appeal.

We have heard learned Advocate for the appellant

and learned Advocate for Kolkata Municipal Corporation

(K.M.C.).

It is not in dispute that the construction that is

being made by the private respondents is pursuant to a

Building Plan sanctioned by K.M.C. The grievance of the

appellant is that such Building Plan ought not to have

been sanctioned without obtaining his consent as the

relevant provisions of the Kolkata Municipal Corporation

Building Rules, 2009 require.

We are told that the appellant has made

representations to various Officers of K.M.C. including

the Municipal Commissioner, the D.G. (Building) and the

Executive Engineer (Civil), Borough-V, K.M.C., 22, Surya

Sen Street, Kolkata - 700009. One of such

representations is dated October 4, 2020 (page 37 of the

stay petition). We are of the view that since the appellant

has ventilated his grievance to the Authorities in the

form of the aforesaid representation, the same should be

considered and a decision should be taken thereon.

Accordingly, we direct the respondent no.5 or any

competent Officer authorized by him to take a reasoned

decision on the aforesaid representation of the

appellant/writ petitioner, in accordance with law and

the applicable rules, within a period of eight (8) weeks

from the date of receipt of a copy of this order along with

a copy of the aforesaid representation, after giving an

opportunity of hearing to the appellant or his authorized

representative as well as to the private respondents or

their authorized representatives. The decision so taken

shall be communicated to the parties within a week from

the date of the decision. Needless to say that if the

Officer finds that there is merit in the complaint of the

appellant, appropriate consequential orders will be

passed.

We have not gone into the merits of the disputes

between the parties. The Commissioner, or the Officer to

be authorized by him, shall take an informed decision in

accordance with law.

Since we have not called for affidavits, the

allegations made in the stay petition shall be deemed not

to have been admitted by the respondents.

The appeal being F.M.A. 306 of 2022 and the

connected application being IA No: C.A.N. 1 of 2021 are

accordingly disposed of.

Let urgent photostat certified copies of this order, if

applied for, be made available to the parties upon

compliance with all necessary formalities.

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