Calcutta High Court (Appellete Side)
Harisadhan Naskar vs State Of West Bengal & Ors on 14 September, 2022
D/L
Item No. 12
14.09.2022
KOLE
FMA 1099 of 2022
With
IA No. CAN 1 of 2022
Harisadhan Naskar
-Vs.-
State of West Bengal & Ors.
Mr. Debabrata Saha Roy,
Mr. L. N. Chatterjee,
... for the appellant.
Mr. Amitesh Banerjee, Ld. Sr. St. Counsel,
Mr. Tarak Karan,
Mr. S. Panja,
... for the State.
Mr. Habibur Rahaman,
... for the respondent 6.
By consent of the parties the appeal and the
application are taken up for hearing together.
A judgment and order dated June 7, 2022, whereby
the appellant's writ petition being WPA No. 18508 of 2016
was dismissed by a learned Single Judge is assailed in the
present appeal.
The appellant had approached a learned Single Judge
earlier by filing WP 29294(W) of 2015 with the grievance
that the concerned Municipality was not considering his
application for sanction of a building plan on a particular
plot of land. The learned Judge disposed of the writ petition
by passing the following order:
"The writ petitioners give an undertaking to
this Court not to construct in the area
claimed to be a pond or water body and in
respect of which a criminal case has been
started by the police. With regard to the
rest of the area the Jaynagar Majilpur
Municipality will sanction the writ
petitioners' application in accordance with
law upon giving a hearing to the petitioners
or their representative within four weeks of
communication of this order."
Pursuant to such order, the Chairman of the
Jaynagar-Majilpur Municipality passed an order dated July
20, 2016 rejecting the appellant's prayer for sanction of the
building plan. That rejection order was challenged by the
appellant by filing the present writ petition.
It was primarily argued before the learned Single
Judge on behalf of the writ petitioner/appellant that the
order passed in the earlier round of litigation directed the
Municipality to take a decision in the matter. The Chairman
acting alone could not take any decision. The rejection
order was without jurisdiction and a nullity.
The learned Judge called for and looked into the
relevant records and found that the land in question is
recorded as 'Doba' and therefore no construction could be
made thereon. Having so found, the learned Judge held that
the question as to whether or not the Chairman had the
power to pass the order rejecting the appellant's application
for sanction of building plan, is a technical point and "pales
into insignificance in view of the fact this Court has made an
exercise to find out whether the land in question under plot
nos. 606 and 607 has been classified as 'Bastu' or 'Doba' by
calling for report from the concerned authorities of the State
respondents". The learned Judge dismissed the writ
petition as meritless. Being aggrieved, the writ petitioner is
before us by way of this appeal.
We have heard learned Counsel for the parties. We
have no intention to go into the merits of the case. We are of
the view that the appellant is right in contending that the
Chairman of the Municipality was not competent to take the
decision which was under challenge before the learned
Single Judge. The direction of this Court was on the
Municipality to take a decision which necessarily means the
Board of Councillors of the Municipality as is envisaged in
Section 207 of the West Bengal Municipal Act, 1993, which is
reproduced hereinunder.
"S. 207. Sanction of building plan and
permission to execute work._
(1) within sixty days after the receipt of any
application with building plan or of any
information or document which the Board
of Councillors may reasonably require the
applicant to furnish before deciding
whether sanction shall be accorded in this
regard, the Board of Councillors shall, by
written order,_
(a) either accord sanction to the building
plan conditionally or unconditionally
and give permission to execute the
work, or
(b) refuse, on one or more of the grounds
mentioned in section 210, to accord
such sanction, or
(c) accord sanction but impose conditions
for compliance before permission to
execute the work.
(2) A building plan sanctioned under this
section shall remain valid for three years
from the date of such sanction, and may be
renewed for such period, and on payment of
such fee, as may be prescribed".
We are of the opinion that the learned Single Judge
without going into the merits of the case ought to have sent
back the matter for consideration afresh by the Board of
Councillors of the Municipality in terms of the order dated
May 18, 2016, passed by a learned Judge of this Court in WP
No. 29294 (W) of 2015.
The order under appeal as also the order dated July
20, 2016, passed by the Chairman of the Municipality are set
aside. The matter is sent back for fresh consideration by the
Board of Councillors of the Jaynagar-Majilpur Municipality.
Let the Board of Councillors of the Municipality take a
reasoned decision on the application of the appellant, in
accordance with law, after consulting the relevant land
records within a period of 12 weeks from the date of
communication of this order, 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.
We make it clear that we have not gone into the
merits of the case at all. The Board of Councillors of the
Municipality shall take an informed decision in the matter in
accordance with law.
Since we have not called for affidavits, the allegations
made in the stay application are deemed not to be admitted
by the respondents.
FMA 1099 of 2022 and CAN 1 of 2022 are,
accordingly, disposed of.
Urgent photostat certified copy of this order be
supplied to the parties, if applied for, as early as possible.
(Apurba Sinha Ray, J.) (Arijit Banerjee, J.)
