Kiran Devi Shaw @ Kiran Devi & Anr vs State Of West Bengal & Ors
2023 Latest Caselaw 4864 Cal

   D/L
Item No 04
08.08.2023
 KOLE
                               MAT 1319 of 2023
                                    With
                             IA No. CAN 1 of 2023
                                   With
                             IA No. CAN 2 of 2023

                  Kiran Devi Shaw @ Kiran Devi & Anr.
                                 -Vs.-
                       State of West Bengal & Ors.


             Mr. Samrat Choudhury,
             Mr. Anit Dey
                                                     ... for the appellants.

             Mr. Priyankar Saha,
             Mr. D. Dinda,
                                                           ... for the State.


                     In Re: CAN 1 of 2023 in MAT 1319 of 2023

                    This is an application for condonation of delay of 549

              days in presenting the appeal as noted by the Additional

              Stamp Reporter.

                    Causes shown being sufficient, we condone the delay.

                    CAN No. 1 of 2023 is, thus, allowed.

                  In Re: MAT 1319 of 2023 with CAN 2 of 2023

                    This appeal is directed against a judgment and order

              dated January 14, 2022, whereby the writ petition of the

              private respondents herein being WPA 26141 of 2018 was

disposed of.

The writ petitioners approached the learned Single

Judge alleging unauthorized construction on the part of the

present appellants. Only the Municipality was represented

before the learned Single Judge. The learned Judge disposed

of the writ petition with the following directions and

observations:-

"As the municipal authorities have already passed an order of demolition dated December 1, 2021 and the respondent nos. 5 and 6 have been asked to demolish the unauthorized constructions pursuant to the hearing held on October 30, 2021, nothing remains to be decided in the writ petition.

The Naihati Municipality shall act and proceed in accordance with law on the basis of the order of demolition, unless the said order is stayed or reserved by a superior forum. A copy of the demolition order is taken on record.

The entire exercise shall be carried out by the municipality within a period of four months from the date of communication of this order."

Being aggrieved, the private respondents in the writ

petition are before us by way of this appeal.

From the affidavit of service filed in court today, we

find that the respondents/writ petitioners as also the

Municipality have been served with notice of this appeal.

However, neither the Municipality nor the respondents/writ

petitioners are represented before us. Learned Advocate for

the appellants submits that the order of demolition dated

December 1, 2021 that is presently being implemented, was

issued by the Chairman of the Municipality and not by the

Board of Councilors. Under Section 218 of the West Bengal

Municipal Act, 1993, it is the Board of Councilors which is

authorized and empowered to issue a demolition order upon

being satisfied that unauthorized construction has been

raised by the person responsible. The demolition order that

was issued by the Chairperson alone is non-est in the eye of

law.

Learned Advocate for the appellants also draws our

attention to a memo dated April 1, 2019 issued by the

Chairman, Naihati Municipality. That memo reads as

follows:-

"Sir, that as per order from the Hon'ble High Court all the parties concerned were remain present on 28/02/2019 at 2 p.m. at the Chamber of the Chairman for hearing of the above mentioned writ petition and Sri Pramed Thakur, Smt. Kiran Devi, Smt. Parbati Devi, Sri Pradip Lal Shaw, Adv.

Manoj Kumar Das were present. On hearing enquiry dt. 17/01/2019 it is found that construction of building at holding no. 128, Robertson Road, P.O & P.S Naihati, Dist. North 24 pgs. has been done according to sanction building plan and as such there is no question of unauthorized construction at the above noted holding is arise at all."

In view of the prima facie case made out by the

appellants, we grant interim stay of operation of the

demolition order for ten days (18.08.2023) from date.

Let fresh notice be served on the Municipality and the

respondents/writ petitioners and/or their learned Advocates

intimating this order as also the fact that this matter will be

listed again on August 16, 2023.

Let fresh affidavit of service be filed in court on the

next date of hearing.

(Arijit Banerjee, J.)

(Apurba Sinha Ray, J.)