Piku Jha vs The State Of West Bengal & Ors
2023 Latest Caselaw 5396 Cal

04.    22.08.2023
       Court No.6
      Tanmoy Ghosh


                                      MAT 1066 of 2023

                                          Piku Jha
                                           -Versus-
                                The State of West Bengal & Ors.

                                            With
                                      IA No: CAN/1/2023
                                            With
                                      IA No: CAN/2/2023

                          Mr. Pinaki Dhole, Adv.,
                          Mr. Md. Ziaur Rahaman, Adv.,
                          Mr. Rabindra Pathak, Adv.
                                               ...for the appellants.

                          Ms. Sangeeta Roy, Adv.,
                          Mr. Ritesh Kr. Ganguly, Adv.
                                               ...for the State.

                          Mr. Avishek Prasad, Adv.
                                               ...for the private respondents.

Affidavit of service filed in Court today be kept

with the records.

In Re: IA No: CAN/1/2023

This is an application for condonation of delay of

ten (10) days in presenting the appeal, as noted by the

Stamp Reporter. Causes shown being sufficient, the

delay is condoned. The application being IA No:

CAN/1/2023 is accordingly disposed of.

In Re: MAT 1066 of 2023 With IA No: CAN/2/2023

By consent of the appearing parties, the appeal and

the connected application are taken up together for

hearing.

A judgment and order dated April 5, 2023, whereby

the appellant's writ petition being WPA No. 10231 of

2022, was disposed of by a learned Single Judge of this

Court, is under challenge in this appeal at the instance

of the writ petitioner.

The writ petitioner approached the learned Single

Judge with the case that although the District

Magistrate, Malda, had directed that the road in

question should be kept intact for safe passage of

ambulance and small fire brigade vehicle and should be

kept at least 8 ft. wide for that purpose, the concerned

Block Development Officer (BDO) and the Pradhan of the

concerned Gram Panchayat did not act in terms of the

order of the District Magistrate, Malda.

It was submitted on behalf of the private

respondents that demarcation of 8 ft. wide road was

made by the concerned Block Land and Land Reforms

Officer (BL&LRO), in the presence of all the parties

including the writ petitioner.

The learned Judge noted that the BDO and the

Pradhan of the concerned Gram Panchayat has ensured

that the boundary wall of the private respondents was

constructed leaving an 8 ft. wide road intact so as to give

access to small fire brigade vehicles and ambulances to

the property of the writ petitioner.

The learned Judge disposed of the writ petition with

the following observations and directions:-

"The District Magistrate had specifically stated that the boundary wall could be constructed by the respondent Nos.9 to 11 by keeping at least 8 ft. wide road intact, for safe passage of ambulance and small fire brigade vehicles. The contention of the petitioner that 8 ft. wide is not sufficient for passage of ambulance and small fire brigade vehicles, requires modification of the order of the District Magistrate.

The petitioner's remedy would be to approach the District Magistrate, Malda for modification of the order upon proof of specific instances when such 8 ft. width was found to be inadequate for passage of ambulance and small fire brigade vehicle.

This Court cannot direct the panchayat authorities to take further steps as the order of the District Magistrate, Malda has been complied with by the Pradhan and the Block Development Officer.

This Court has not considered the merits of the case."

Being aggrieved, the writ petitioner has come up

before us by way of this appeal.

Appearing for the appellant, Mr. Dhole, learned

Advocate, submits that the direction of the District

Magistrate was not to keep 8 ft. wide road intact only.

The direction must be read as a whole and if read as a

whole, it would mean that the road should be at least 8

ft. wide and sufficiently wide for an ambulance or a

small fire brigade vehicle to pass without any obstacle.

We agree with such interpretation of the District

Magistrate's order. The main object of the order was to

ensure that an ambulance or a small fire brigade vehicle

has access to the property of the writ petitioner, if such

need arises. The grievance of the appellant is that the

road is only 8 ft. wide, which makes it very difficult and

almost impossible for an ambulance or a small fire

brigade vehicle to negotiate the road and to make other

necessary manoeuvres.

The complaint of the writ petitioner is based on

certain facts which we are not in a position to verify.

Hence, we grant liberty to the appellant/writ petitioner

to approach the District Magistrate, Malda, being the

respondent no.3 herein, with a comprehensive

representation and if the appellant does so within three

weeks from date, the respondent no.3 will take a

reasoned decision thereon, in accordance with law,

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

the representation, after affording opportunity of hearing

to the present appellant/writ petitioner and the private

respondents and/or their authorized representatives. In

the event, the respondent no.3 finds merit in the

grievance of the appellant, appropriate remedial

measures will be taken, in accordance with law, so that

such grievance is redressed.

We do not see any infirmity in the order under

appeal. Our order is only clarificatory of the learned

Judge's order.

We have not gone into the merits of the disputes

between the parties. No observation in this order shall

be construed as any kind of mandate on the respondent

Authorities to decide the representation that the

appellant proposes to make, in any particular manner.

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 1066 of 2023 and the

connected application being IA No: CAN/2/2023 are

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.)