Partha Dan vs The State Of West Bengal & Ors
2023 Latest Caselaw 4658 Cal

15.   02.08.2023
       Court No.6
      Tanmoy Ghosh


                                        MAT 787 of 2022

                                           Partha Dan
                                            -Versus-
                                 The State of West Bengal & Ors.

                                              With
                                       IA No: CAN/1/2023

                           Mr. Mahendra Prasad Gupta, Adv.,
                           Mr. Dilip Kr. Saila, Adv.
                                              ...for the appellant.

                           Mr. Soumik Ganguli, Adv.
                                              ...for the respondent no.2/

Municipality.

Affidavit of service filed in Court today be kept with

the records.

By consent of the appearing parties, the appeal and

the connected application are taken up together for

hearing.

A judgment and order dated April 22, 2022,

whereby the appellant's writ petition being WPA 10879

of 2020 was dismissed by a learned Single Judge, is the

subject-matter of challenge in this appeal.

The appellant had approached the learned Single

Judge with the grievance that the private respondents

had made illegal construction at premises known as

"Ananda Kutir", situate within the Municipal Holding

Nos. 4, 104 and 241 in Kenduadihi Mahalla Ward No.5

of Bankura Municipality.

The learned Judge noted that the appellant/writ

petitioner is a resident of premises no.50, Paddapukur

Road, Bhawanipore, Kolkata - 700020. The learned

Judge came to the conclusion that the writ petitioner,

being a resident of South Kolkata, had no locus standi to

maintain the writ petition in respect of the alleged

unauthorized construction in the district of Bankura.

The other point which the learned Judge noted is that

the property in question is a Trust property. However,

the writ petitioner has not disclosed the nature of the

Trust i.e. whether it is a Public Charitable Trust or a

Private Trust, etc. The learned Judge concluded that in

view of such shortfalls on the part of the writ petitioner,

the Court was not inclined to exercise the discretionary

and equitable jurisdiction under Article 226 of the

Constitution of India in favour of the writ petitioner.

Hence this appeal.

We have heard learned Counsel for the parties.

From the affidavit of service filed in Court today, it

appears that the private respondents have received

notice but they are not represented.

We find from records that a representation dated

December 1, 2020, was made by the present appellant to

the Chairman/Administrator, Bankura Municipality

(page 38 of the stay petition). We are of the view that it

may not harm anybody if such representation is decided

by the Chairman of the Municipality. After all, if there is

merit in the complaint of the appellant, then the

Municipality should take steps to see that any

unauthorized construction raised without obtaining

sanctioned plan is removed.

Accordingly, we direct the Chairman/Administrator

of the Bankura Municipality, being the respondent no.2

herein, to take a reasoned decision on the appellant's

representation dated December 1, 2020, in accordance

with law and the applicable Rules and Regulations,

within a period of eight weeks from the date of receipt of

a copy of this order along with a copy of the

representation dated December 1, 2020, after giving an

opportunity of hearing to the appellant herein, the

private respondents and any other concerned party

and/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, if

the respondent no.2 finds that any unauthorized

construction has been made by anybody concerned, the

same shall be dealt with by him, in accordance with law.

We have not gone into the merits of the case at all.

The respondent no.2 shall take an informed decision, in

accordance with law.

The order under appeal is accordingly set aside.

However, we make it clear that in the event any of

the concerned parties including the present appellant,

fails to attend the hearing before the Municipality in

spite of receipt of notice, the Chairman/Administrator

will be entitled to proceed ex parte in the matter.

Since we have not called for affidavits, the

allegations in the stay petition shall be deemed not to

have been admitted by the respondents.

The appeal being MAT 787 of 2022 and the

connected application being IA No: CAN/1/2023 are

accordingly disposed of.

Let urgent photostat certified copy of this order, if

applied for, be made available to the parties upon

compliance with all requisite formalities.

(Arijit Banerjee, J.)

(Apurba Sinha Ray, J.)