Srikanta Kumar Sinha vs Sri Prasanta Kumar Sinha & Ors
2023 Latest Caselaw 4281 Cal

   D/L
Item No 06
18.07.2023
 KOLE
                               FMA 1332 of 2022
                                    With
                             IA No. CAN 1 of 2023
                                   With
                             IA No. CAN 2 of 2023

                          Srikanta Kumar Sinha
                                  -Vs.-
                    Sri Prasanta Kumar Sinha & Ors.


             Mr. M. P. Gupta,
             Mr. D. S. Saila
                                                      ... for the appellant.

             Mr. S. Chakraborty,
             Mr. T. Ganguly,
             Mr. A. Basu,
                                               ... for the respondent no. 1.

Mr. Sandipan Banerjee, Mr. Ankit Sureka, Mr. Sovan Mazumdar, ... for the HMC.

Mr. Debjit Mukherjee, Mr. R. Chakraborty, ... for the State.

In Re: CAN 1 of 2023 in FMA 1332 of 2022

This is an application for condonation of delay of 16

days in filing 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: FMA 1332 of 2022 with CAN 2 of 2023

This appeal is directed against a judgment and order

dated September 6, 2022, whereby the writ petition of the

respondent no. 1 herein, being WPA No. 12090 of 2022 was

disposed of.

It appears that a case was initiated against the

appellant herein for unauthorized construction. Our

attention has been drawn to page 54 of the stay application

which is a copy of a hearing sheet recording the minutes of a

hearing dated January 14, 2021 before the Borough

Officer/Assistant Engineer of Howrah Municipal

Corporation. The appellant herein was heard and it appears

that he admitted that some deviation from sanctioned plan

took place at the time of construction.

On the basis of such admission, a self-demolition

notice dated February 2, 2021 was issued by the Officer in

Charge, Borough Committee-II, Howrah Municipal

Corporation calling upon the appellant herein to demolish

the unauthorized construction, failing which the Corporation

would demolish the same at the cost of the appellant herein.

Alleging inaction on the part of the Howrah Municipal

Corporation and that no step was taken by the Corporation

for implementation of the self-demolition order referred to

above, the respondent no. 1 in this appeal approached the

learned Single Judge in the present round of litigation. It

was submitted before the learned Single Judge on behalf of

the appellant/respondent no. 6 that a civil suit at the

instance of the writ petitioner is pending before the 4th Court

of the Civil Judge (Junior Division) at Howrah being Title

Suit No. 31 of 2021. It was pointed out that Howrah

Municipal Corporation was defendant no. 2 in the said suit.

It was submitted that the writ petitioner cannot proceed

before two fora with the same cause of action.

The learned Judge, however, noted that the issues

pending before the Civil Court pertain to encroachment. The

writ petition concerns unauthorized construction.

Accordingly, the learned Judge disposed of the writ petition

by passing the following directions:-

"On a perusal of the said order of self- demolition, it appears that the details of the unauthorized construction is not mentioned therein but from the hearing-sheet that has been annexed to the writ petition containing the signature of the respondent No. 6 it appears that the respondent No. 6 admitted that there has been deviation at the time of making construction.

The order of demolition was passed way back in February 2021 but the same is yet to be implemented.

The Howrah Municipal Corporation is accordingly directed to implement the direction passed in the communication dated 2nd February, 2021 at the earliest, but positively within a period of twelve weeks from the date of communication of a copy of this order provided the same is not set aside/modified/varied by any Court of competent jurisdiction."

Being aggrieved, the respondent no. 6 in the writ

petition has come up by way of this appeal.

Mr. Gupta, Learned Advocate, appearing for the

appellant says that apart from the fact that the writ petition

ought not to have been entertained in view of the pendency

of the civil suit, the self-demolition notice does not specify

the nature or extent of deviation from the sanction plan.

Hence, it is incapable of execution.

We are not impressed with the submission that the

learned Single Judge ought not to have entertained the writ

petition because a civil suit is pending between the parties.

As it appears to us, the main issue in the civil suit is

encroachment. That cannot prevent the Howrah Municipal

Corporation from discharging its statutory duty to ensure

that an illegal construction does not continue to be in

existence.

However, we see some substance in the submission of

Mr. Gupta that the self-demolition notice is vague in the

sense that it does not contain sufficient particulars of the

unauthorized construction.

Accordingly, we direct the Howrah Municipal

Corporation through its competent officer to hold inspection

of the building in question and file a report before us on the

adjourned date indicating the nature and extent of

unauthorized construction with sufficient particulars. Let

such inspection be held on 25.07.2023 at 12 noon in the

presence of the appellant and the writ petitioner herein. No

further notice of such inspection will be served. This order

will serve as such notice. The appellant shall render full

cooperation and help to the Corporation officers to carry out

the local inspection of the property in question.

Mr. Gupta on instruction further submits that on

June 9, 2023, the Corporation people had visited the

property in question and demolished a portion of the

property. If, in fact, that has happened, the Corporation

shall also mention the same in its report to be filed on the

adjourned date.

To avoid any untoward incident, the Officer in Charge

of the Golabari Police Station is directed to deploy adequate

police personnel at the locale in question on 25.07.2023

from 11.30 a.m. till the local inspection is over. The Officer

in Charge of the Police Station will be responsible to ensure

that there is no violence or breach of law and order in the

area. It is made clear that apart from the appellant, the writ

petitioner alone will be entitled to be present at the time of

inspection by the Corporation officers.

List the matter once again on 31.07.2023.

The Officer in Charge of the Golabari Police Station

and all parties are directed to act on the server copy of this

order.

Since we are in the process of hearing out the matter,

let no coercive action be taken in respect of the impugned

construction till August 1, 2023 or until further order

whichever is earlier.

(Arijit Banerjee, J.)

(Apurba Sinha Ray, J.)