Calcutta High Court (Appellete Side)
Sudhangsu Ghosh vs The State Of West Bengal & Ors on 4 August, 2023
09. 04.08.2023
Court No.6
Tanmoy Ghosh
FMA 963 of 2022
Sudhangsu Ghosh
-Versus-
The State of West Bengal & Ors.
With
IA No: CAN/1/2022
Mr. Bhaskar Chandra Manna, Adv.
...for the appellant/
writ petitioner.
Mr. Debasish Das, Adv.
...for the respondent nos. 9-14.
By consent of the appearing parties, the appeal and
the connected application are taken up together for
hearing.
A judgment and order dated March 30, 2022,
whereby the appellant's writ petition being WPA 15452
of 2021, was disposed of by a learned Single Judge of
this Court, is under challenge in this appeal.
The appellant approached the learned Single Judge
with a grievance that his application for sanction of a
Building Plan has been rejected by the concerned Gram
Panchayat. The Pradhan of the concerned Gram
Panchayat, by an order dated April 13, 2019, held that
sanction of the Building Plan on Dag No. 1131, could not
be granted by the Panchayat Authorities as the
sanctioning Authority was the Panchayat Samiti.
The learned Judge also referred to the West Bengal
Panchayat (Panchayat Samiti Administration) Rules,
2008. The Panchayat Authorities contended that the
area in question was a notified area under the concerned
Development Authority in terms of the provisions of the
West Bengal Town and Country (Planning and
Development) Act, 1979.
The learned Judge observed that according to the
development plan published, the area, in which the writ
petitioner proposes to construct a building, falls within
the jurisdiction of the Haldia Development Authority.
The learned Judge disposed of the writ petition by
observing as follows:-
"The petitioner has the option to approach the concerned
Panchayat Samiti in accordance with law. If the petitioner is
aggrieved by the merits of the decisions of the Panchayat
authorities, the order being appealable under Section 23(4) of
the West Bengal Panchayat Act, 1973, the petitioner may prefer
an appeal, before the appellate authority.
This Court has not gone into the claims and counter-
claims of the parties."
Being aggrieved, the writ petitioner is before us by
way of the present appeal.
Mr. Manna, learned Advocate appearing for the
appellant/writ petitioner, vociferously argued that the
Pradhan of the concerned Gram Panchayat has passed a
patently erroneous order. He has drawn our attention to
the order at page 48 of the application filed in
connection with the appeal.
We have not called upon the respondents to make
argument.
The crux of the matter is that the concerned Gram
Panchayat has passed an order in exercise of power
under Section 23(3) of the West Bengal Panchayat Act,
1973 (hereinafter referred to as the '1973 Act'), which
reads as follows:-
" 23. Control of building operations. -
... (3) On receipt of such application the Gram Panchayat,
after making such enquiry and examination of the building plan
as it considers necessary and in accordance with such rules as
may be made by the State Government in this behalf, shall, be
order in writing, either grant the permission or refuse it,
recording in the case of refusal the reasons therefor."
Section 23(4) of the 1973 Act provides for a
statutory appeal by the aggrieved party against an order
passed by the Gram Panchayat under Sub-Section (3)
refusing permission to build. Sub-Section (4) of the 1973
Act reads as follows:
" 23. Control of building operations. -
... (4) Any person aggrieved by an order of the Gram
Panchayat under sub-section (3) refusing permission or non-
receipt of any intimation in this regard within the stipulated
time as may be prescribed, may prefer an appeal to such
appellate authority as may be prescribed :
Provided that any person aggrieved by an order of the
authority may prefer an appeal before the reviewing authority
as may be prescribed :
Provided further that no appeal shall lie against the order
of the reviewing authority."
In view of availability of such statutory alternative
remedy, we are of the opinion that the appellant/writ
petitioner ought not to have approached the writ Court.
He should have taken recourse to Section 23(4) of the
1973 Act. In our opinion, the statutory appeal is a much
more efficacious remedy since factual disputes may be
involved, which it may not be convenient for the writ
Court to adjudicate.
For the reasons afore-stated, without entering into
the merits of the appellant's case, we dispose of the
appeal with the following liberty to the appellant:-
The appellant will be at liberty to approach the
Appellate Authority prescribed by Section 23(4) of the
1973 Act. If the appellant approaches the Appellate
Authority within four weeks from date, that Authority
shall decide the appeal on merits, in accordance with
law, without going into the question of time-bar or
limitation. Needless to say, the Appellate Authority, if
approached by the present appellant, shall decide the
appellant's case by passing a reasoned order, in
accordance with law, after granting opportunity of
hearing to all concerned parties, within a period of eight
weeks from the date of filing of the appeal.
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 FMA 963 of 2022 and the
connected application being IA No: CAN/1/2022 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.)
