Calcutta High Court (Appellete Side)
Sudhangshu Sekhar De vs The State Of West Bengal & Ors on 2 August, 2023
02.08.2023
Item No.04
Court No.6.
S. De
M.A.T. 1086 of 2023
With
I.A. No. CAN/1/2023
I.A. No. CAN/2/2023
Sudhangshu Sekhar De.
Vs
The State of West Bengal & Ors.
Mr. Robiul Islam,
Mr. Raju Mondal,
...for the appellant.
Mr. Sujay Bandyopadhyay,
Mr. Shambhu Mahato,
...for the Midnapore Municipality.
Mr. Rabindranath Mahato,
Mr. Aritra Shankar Ray,
...for the respondent nos. 11 to 13.
Mr. Jahar Datta,
Mr. Benazir Ahmed,
...for the State.
By consent of the parties the appeal and the
connected applications are taken up together for
hearing.
In re : I.A. No. CAN 1 of 2023.
This is an application for condonation of delay of
six days in filing the appeal. Causes shown being
sufficient, the delay is condoned.
I.A. No. CAN 1 of 2023 is, accordingly, disposed
of.
In re : MAT 1086 of 2023 & I.A. No. CAN 2 of
2023.
This appeal is directed against a judgment and
order dated April 19, 2023, whereby the learned Single
Judge disposed of two writ applications being WPA
25283 of 2022 (Pallab Sarkar Vs. The State of West
Bengal & Ors.) and WPA 27873 of 2022 (Sudhangshu
Sekhar De Vs. The State of West Bengal & Ors.).
The private respondents in both the writ
applications were the same persons. Pallab filed the
writ application with the grievance that a building plan
was illegally sanctioned in favour of the private
respondents pursuant whereto, constructions have
been raised by the said respondents and such plan
should be withdrawn/cancelled by the Midnapore
Municipality. Pallab's specific contention was that the
quantum of land mentioned in the sanctioned plan is
incorrect. The same does not tally with the quantum
of land mentioned in the relevant title deed. The
private respondents have made construction on
greater area of land than has been shown in the
sanctioned plan.
Sudhangshu's contention was that the private
respondents have made unauthorized construction in
deviation from the sanctioned building plan.
The learned Judge had called for a report from
the SRO-II and the Revenue Officer & Technical
Advisor. Such a report dated February 28, 2023, was
filed. After considering the report, the learned Judge
observed that the root of the issue appears to be the
quantum of land on which the private respondents
have made construction. The learned Judge disposed
of the writ applications with the following observations
:-
"Neither the Municipality nor the
State respondents will be the
appropriate body to decide the issue.
There are several disputed questions of
facts which cannot be decided by the
writ Court. Evidence is required to be
adduced to come to a conclusion with
regard to the quantum of land held by
the parties.
In view of the above, both the writ
petitions stand disposed of by granting
liberty to the petitioners to approach the
appropriate forum for declaration of
their rights.
The Municipality will only ensure
that no unauthorized construction is
carried out at the subject premises.
Be it recorded that T.S. No.44 of
2021 has been filed by Sudhangshu
against the private respondents and the
State authorities. The said Suit is
pending consideration."
Being aggrieved, one of the writ petitioners being
Sudhangshu has come up by way of this appeal.
We enquired of the learned advocate appearing
for Sudhangshu as to whether or not Sudhangshu had
made a representation to Midnapore Municipality
ventilating his grievance regarding alleged
unauthorized construction having been made by the
private respondents. Learned advocate apprises us
that such a representation had been made. The same
has been disposed of by a reasoned order dated
November 5, 2022. We are told that such order was
brought on record before the learned Single Judge by
learned advocate for the Municipality. The order of the
Municipality was, however, not challenged in the writ
petition filed by Sudhangshu.
The order of the Municipality may have been
brought on record before the learned Single Judge, but
the fact remains that such order was not under
challenge in the writ petition filed by Sudhangshu.
The appellant says that he is aggrieved by that order
as there are anomalies in that order. That may be so,
we express no opinion on that as we are not inclined to
enter into the merits of the dispute. The obvious
remedy of the appellant is to challenge the said order
of the Municipality in accordance with law, if he is
entitled to do so.
Mr. Mahato, learned advocate appearing for the
private respondents says that since the appellant i.e.
Sudhangshu did not challenge the said order of the
Municipality in his writ petition, his challenge to the
order would be barred under the provisions of Order 2
Rule 2 of the Code of Civil Procedure.
Mr. Islam, learned advocate for the appellant
says that as on the date of filing of the writ petition,
Sudhangshu did not have knowledge of the order of
the Municipality as the same had not been
communicated to him. Be that as it may, we are not
entering into such a dispute. If the appellant is
entitled in law to challenge the order of the
Municipality, he will be at liberty to do so.
We find no apparent infirmity in the order under
appeal. Any challenge that the appellant herein may
throw to the order of the Municipality shall be decided
in accordance with law without being influenced by
any observation in the order under appeal in this
proceeding.
MAT 1086 of 2023 is disposed of along with the
application being I.A. No. CAN 2 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.
(Arijit Banerjee, J.)
(Apurba Sinha Ray, J.)
