Sanjoy Das & Anr vs The State Of West Bengal & Ors
2023 Latest Caselaw 2519 Cal

13.04.2023
Item No.01
Court No.6.
    S. De
                                M.A.T. 644 of 2023
                                        with
                              I.A. No. CAN 1 of 2023

                               Sanjoy Das & Anr.
                                       Vs
                         The State of West Bengal & Ors.

                    Mr. Ranajit Chatterjee,
                    Mr. Nilratan Banerjee,
                    Mr. Arijit Dey,
                    Mr. Aniruddha Mitra,
                                       ...for the appellants.
                    Mr. Raghunath Chakraborty,
                    Ms. Sabnam Sultana,
                                 ...for the respondent no.4.

Mr. Sandip Ghosh, Mr. Sudarsan Roy, Mr. Debayan Ghosh Mr. Romit Bose, Mr. D. Majumder, ...for the North Dum Dum Municipality. Mr. Ansar Mondal, Ld. A.G.P., Ms. Srilekha Bhattacharyya, ...for the State.

By consent of the parties the appeal and the

connected application are taken up together for

hearing.

A judgment and order dated April 10, 2023

whereby two writ petitions were disposed of is the

subject matter of challenge in this appeal.

WPA 8400 of 2023 was filed by the present

appellants. WPA 7064 of 2023 was filed by the private

respondent no.4 in WPA 8400 of 2023 i.e. Keya Kar.

Briefly stated, the factual background of the

case appears to be that a demolition order was passed

initially in 2001 in respect of certain construction

made by the present appellants, by the Municipality,

on the ground that the same was in deviation from the

sanctioned plan. Such demolition order was

successfully assailed by the appellants before the

competent forum and the demolition order was set

aside.

Subsequently, in 2007, again the Municipality

passed a demolition order for removing the portion of

the concerned construction which, according to the

Municipality, was in deviation from the sanctioned

plan. This order was communicated to the appellants

some time in 2008. The appellants challenged such

demolition order before the competent Civil Court by

way of an appeal as provided for in Section 218(3) of

the West Bengal Municipal Act, 1993. The appellants

also obtained an interim order of stay of operation of

the demolition order.

For whatever reason, the appellants withdrew

the suit filed before the competent Civil Court

challenging the demolition order, some time in 2016.

It is also a matter of record that subsequently the

Board of Councillors of the Municipality held a hearing

wherein the appellants participated. The Board of

Councillors reiterated its earlier decision that the

impugned construction has to be demolished.

Thereafter nothing happened. In spite of the

Board of Councillors deciding that the impugned

construction must be demolished, it is surprising that

the Municipality did not take any steps for

implementing its own order. Seven years went by.

Keya then filed the present writ petition praying for

implementation of the demolition order of 2016. Only

thereupon, the Municipality issued a notice to the

appellants herein fixing April 12, 2023, as the date for

implementation of the demolition order. Such notice

was assailed by the present appellants in WPA 8400 of

2023. By a common judgment and order, both the

writ petitions i.e., the one filed by the present

appellants and the other one filed by Keya Kar, were

disposed of by the learned Single Judge. In effect, the

writ petition of these appellants was dismissed. The

learned Judge observed that the Municipality shall

take steps to implement the order of demolition in

accordance with law.

Being aggrieved, the writ petitioners in WPA

8400 of 2023 are before us by way of the present

appeal.

We have carefully gone through the order of the

learned Single Judge. The learned Judge has held

that the appellants herein took no steps to challenge

the order of demolition passed in 2016. It was

submitted by the appellants before the learned Single

Judge that the challenge to the order of demolition

that was initiated before the appellate forum by way of

a civil suit, was withdrawn on the assurance given by

the then Chairman of the Municipality that the case of

the appellants will be considered favourably. The

learned Judge noted that nothing could be produced

which would show that any such assurance was given

by or on behalf of the Municipality. Learned advocate

for the Municipality strongly disputed that any such

assurance was ever given. The learned Judge

observed that the appellants woke up from slumber

only upon notice being issued by the Municipality for

implementing the demolition order on April 12, 2023.

The appellants should have approached the appellate

forum rather than the writ Court. Valuable right has

accrued in favour of Keya Kar and any order passed

touching the order of demolition would infringe such

right. With those observations the learned Judge

dismissed the writ petition of the present appellants.

Before us, Mr. Chatterjee, learned advocate

appearing for the appellants submitted that, may be

that the appellants did not take steps for seven years

in the matter, but it is equally true that the

Municipality also did not take steps for

implementation of the demolition order. This supports

the case of the appellants that assurance had been

meted out by or on behalf of the Municipality that the

case of the appellants would be considered favourably.

The fact will come out if the appellants are allowed to

again approach the appellate forum by way of a suit.

Learned advocate submitted that for the ends of

justice a short window of a fortnight or even a week

may be granted to the appellants to enable them to

again approach the appellate forum. He submitted

that after all, the Municipality not having carried out

its order of demolition for seven years, heaven will not

fall if the appellants are granted one opportunity to

assail the order of demolition passed in 2016 before

the appellate forum. He submitted that no limitation

period has been prescribed for filing such statutory

appeal. He also relied on a decision of the Hon'ble

Supreme Court in the case of Dadu Dayal

Mahasabha Vs. Sukhdev Arya & Anr. reported in

(1990) 1 Supreme Court Cases 189. In particular he

relied on the observations in paragraph 7 of the

reported judgment in support of his submission that if

withdrawal of a suit is permitted by the Court on

fraudulent representation or if a party is induced to

withdraw his suit on the basis of certain

representation which later turns out to be false or

fraudulent, then the order of withdrawal of the suit

may be recalled by the Court. In the case before the

Hon'ble Supreme Court, a person claiming to be the

elected Secretary of a Society withdrew a suit that had

been filed on behalf of the Society. It subsequently

transpired that that person was not the elected

Secretary of the Society and otherwise also had no

authority to represent the Society. In those

circumstances, the Supreme Court held that the Court

always has inherent power to correct its own

proceedings when the Court has been misled. The

facts of that case are totally different from the facts of

the present case. In our considered opinion that

decision in no manner advances the case of the

present appellants.

We have recorded the gist of the learned Single

Judge's order. We find no infirmity in the order under

appeal. The order does not warrant any interference.

At this stage Mr. Chatterjee, learned advocate

appearing for the appellants, on instructions, says

that the appellants shall themselves demolish the

impugned construction within fifteen days from date.

This would not only save the Municipality the costs of

demolition, the appellants can also undertake the

demolition activity by ensuring that the other portions

of the construction are not adversely affected.

We grant fifteen days' time to the appellants on

their undertaking given through their learned

advocate-in-record, which we record herein, to

demolish the impugned construction within fifteen

days from date. After fifteen days the Municipality

shall immediately depute competent officers to inspect

the premises in question to find out if the offending

construction has been removed. If they are satisfied

that the unauthorized portion has been demolished,

the matter would end there. Otherwise, the

Municipality will take immediate steps to demolish the

impugned construction at the cost of the appellants.

Accordingly, MAT 644 of 2023 is disposed of

along with the application being I.A. No. CAN 1 of

2023.

Urgent certified photostat copy of this order, if

applied for, shall be given to the parties as

expeditiously as possible on compliance with all the

necessary formalities.

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