Calcutta High Court (Appellete Side)
Shyamal Kumar Mondal vs The State Of West Bengal & Ors on 22 February, 2023
D/L
Item No. 4
22.02.2023
KOLE
MAT 1647 of 2022
With
IA No. CAN 1 of 2022
Shyamal Kumar Mondal
-Vs.-
The State of West Bengal & Ors.
Mr. Balailal Sahoo,
Mr. S. Banerjee,
Mr. Dilip Kr. Mondal,
... for the appellant.
Mr. Naba Kr. Das,
Mr. Subhabrata Das,
... for the State.
Mr. Soumik Ganguli,
... for the respondent no. 10.
By consent of the parties the appeal and the
application are taken up for hearing together.
This appeal is directed against a judgment and order
dated September 19, 2022, whereby WPA No. 20681 of
2022, filed by the appellant herein, was disposed of.
It appears that the appellant approached the learned
Single Judge with the grievance that the private respondent
has constructed a house under the Pradhan Mantri Awas
Yogona Gramin Scheme, without adhering to the relevant
building rules and also upon encroaching on the petitioner's
land and Government land.
The learned Judge observed that the authorities came
to a preliminary finding that the construction was not on the
land of the petitioner, based on demarcation and records.
It appears that a notice had been issued by the
concerned Gram Panchayat on June 27, 2022 calling upon
the petitioner/appellant to produce relevant records but the
appellant did not respond to such notice. Such notice had
been issued pursuant to a direction of the learned Single
Judge of this Court contained in an order dated January 17,
2022 passed in WPA 9405 of 2020, which was a writ petition
also filed by the appellant herein.
The said writ petition was disposed of by the learned
Single Judge with the following directions:-
"However, the competent authority of
Jogeshganj Gram Panchayat is directed to
make a fresh inspection of the premises of
the alleged construction in order to
ascertain whether the said construction has
been made in accordance with the rules,
guidelines and permission granted to the
respondent no. 11 for a construction under
the PMAY-G Scheme. The inspection report
will be handed over to the parties. The
parties must be allowed to file their written
version/objection and a hearing shall be
given to them.
If it is found that the said construction has
been made in accordance with the
guidelines and drawings approved for such
construction under the PMAY-G Scheme,
the authority shall pass a reasoned order to
that effect intimating the same to the
parties. If it is found that the said
construction is being made contrary to the
provisions of law, then the Panchayat
authority shall act and proceed
accordingly. A reasoned order shall be
passed in this regard and communicate to
the parties.
The entire exercise shall be completed
within a period of six months from the date
of communication of this order.
Regarding the allegation of encroachment
and the dispute with regard to the title of
the parties, the parties are at liberty to
approach the appropriate Civil Court in
accordance with law."
Pursuant to the aforesaid order, the notice dated June
27, 2022 was issued by the Pradhan of the concerned Gram
Panchayat.
The learned Single Judge disposed of the present writ
petition with the following observations:-
"The petitioner is granted one month's time
to comply with the notice dated June 27,
2022. Such notice was issued by the
Pradhan, Jogeshganj Gram Panchayat
pursuant to the direction of this court dated
January 27, 2022.
In case the petitioner can show contrary
records and documents, the authorities
shall make a further enquiry and
demarcate the land in presence of all the
parties. In case the petitioner is not able to
produce any documents, further enquiry by
the authorities is not warranted. In any
event, dispute with regard to title and
possession has to be settled by a civil court.
Only the allegation of unauthorized
construction can be decided by the
panchayat authorities.
The writ petition is disposed of accordingly.
A reasoned order shall be passed and
communicated to all.
If the petitioner files a representation, the
copy of the same shall be supplied to the
respondent no. 11 and the panchayat
authorities shall proceed accordingly, upon
granting adequate opportunity of hearing
to not only the petitioner but also to the
respondent no. 11 and all other co-sharers.
The entire exercise shall be completed
within a period of 3 months from the date of
receipt of the petitioner's representation."
Being aggrieved, the writ petitioner has come up by
way of this appeal.
Mr. Sahoo, learned Advocate appearing for the
appellant, took us through various documents and reports of
diverse authorities. He took great pains to point out
apparent inconsistencies in the reports of the different
authorities. Submission was made at length on various
factual aspects including encroachment. All these aspects
cannot be conveniently considered by the writ court. The
learned Judge rightly directed the concerned Panchayat to
consider whether or not the house of the private respondent
has been constructed following the applicable building rules.
The learned Judge had observed in the earlier order dated
January 17, 2022 that the issue of alleged encroachment and
dispute with regard to title can be taken to a civil forum.
We see no apparent infirmity in the order of the
learned Single Judge.
Further, learned Advocate for the Pradhan of the
concerned Gram Panchayat draws our attention to an order
dated November 3, 2022 passed by the Jogeshganj Gram
Panchayat pursuant to the order impugned in this appeal. In
other words, the order challenged before us, has been carried
out. Strictly speaking, this appeal has become infructuous.
If the appellant is aggrieved by the order dated November 3,
2022, passed by the concerned Gram Panchayat, he will be at
liberty to challenge the same before the appropriate forum in
accordance with law.
Mr. Sahoo points out that the order dated November
3, 2022 says that a hearing was held on October 27, 2022.
However, that was a holiday. Hence, in fact, no hearing was
held.
Learned Advocate for the Pradhan says that notice of
the meeting was served on the appellant but the appellant
failed to attend the meeting. The appellant further says that
he attended the meeting but his presence has not been
recorded.
Mr. Sahoo says that upon receipt of notice dated
October 14, 2022 issued by the Panchayat fixing the date of
hearing on October 27, 2022, the appellant on October 25,
2022, made a written request to the Gram Panchayat to
defer the hearing fixed on October 27, 2022 in view of the
pendency of the present appeal. However, the Gram
Panchayat went ahead and allegedly held the meeting
scheduled for October 27, 2022.
All these points, the appellant will be at liberty to
agitate before the appropriate forum in a proceeding that the
appellant may institute for challenging the order dated
November 3, 2022 passed by the concerned Gram
Panchayat.
As aforestated, we find nothing wrong with the order
under appeal which may call for our interference. The
appeal and the connected application are, accordingly,
dismissed.
Urgent photostat certified copy of this order be
supplied to the parties, if applied for, as early as possible.
(Apurba Sinha Ray, J.) (Arijit Banerjee, J.)
