Pranab Kumar Das vs The State Of West Bengal & Ors
2023 Latest Caselaw 4399 Cal

20.07.2023
Item No.10
Court No.6.
    S. De
                                 M.A.T. 834 of 2023
                                         With
                                I.A. No. CAN/1/2023

                               Pranab Kumar Das.
                                        Vs
                          The State of West Bengal & Ors.

                    Mr. Jyoti Prakash Chatterjee,
                                        ...for the appellant.
                    Mr. Gora Chand Samanta,
                          ...for the writ petitioner/respondent no.7.

Mr. Biplab Ranjan Bose, ...for the Bansberia Municipality.

By consent of the parties the appeal and the

connected application are taken up together for

hearing.

A judgment and order dated April 17, 2023,

whereby the writ petition being WPA 5617 of 2023 was

disposed of, is assailed in this appeal by the

respondent no.7 in the writ petition.

The writ petitioner approached the learned

Single Judge with the grievance that the private

respondent no.7 in the writ petition (appellant herein)

is making fresh unauthorized construction at holding

no.151, Shibtala Lane, Khamarpara, Ward No.2 under

the Bansberia Municipality. The

objection/representation filed by the writ petitioner

against such unauthorized construction has not been

considered by the Municipality.

The learned Judge disposed of the writ petition

by directing the Municipality to pass a reasoned order

on the representation of the writ petitioner after giving

opportunity of hearing to all the concerned parties

including the appellant herein. The learned Judge

further directed that in the event the Municipality

finds that there is unauthorized construction, the

same shall be dealt with in accordance with law. The

learned Judge further clarified that the Municipality,

while considering the representation, shall not enter

into any question of title dispute or encroachment.

Being aggrieved, the respondent no.7 in the writ

petition has come up by way of this appeal.

We have heard learned counsel for the parties.

We find no infirmity in the order under appeal.

Learned advocate for the appellant says that the

appellant herein had filed a civil suit before the Civil

Judge (Junior Division), Additional Court, Hooghly

being Title Suit No.192 of 2000 (subsequently re-

numbered as Title Suit No.40 of 2013}, against

amongst others, the writ petitioner herein claiming

declaration and injunction. In the said suit the writ

petitioner herein filed a counter claim contending that

the appellant herein had encroached on the land of the

writ petitioner and had made unauthorized

construction there. The writ petitioner being one of

the defendants in that suit inter alia prayed for an

order for demolition of such illegal construction. The

plaintiff's suit was dismissed for default on April 8,

2010. Thereafter the defendants proceeded with their

counter claim but the counter claim was also

dismissed by the learned Judge by his judgment and

order dated June 13, 2022. Learned advocate says

that the issue of illegal construction has already been

decided by the learned Civil Judge in favour of the

present appellant. Hence, that issue is res judicata

and cannot be re-agitated any further.

We are unable to agree with learned advocate for

the appellant. In our understanding and as appears

from the records, the issue before the learned Civil

Judge was as to whether or not the appellant herein

had encroached on the land of the writ petitioner

herein and had made construction on the land of the

writ petitioner. The issue as to whether or not there is

a building plan in respect of the impugned

construction or if there is a building plan as to

whether or not the construction is in accordance with

such plan, was not there before the learned Single

Judge.

Hence, there is no question of application of the

principles of res judicata.

We have already stated that we find no reason to

interfere with the order under appeal. The

Municipality will only consider as to whether or not

there is a sanctioned plan in respect of the impugned

construction of the appellant. If there is no sanctioned

plan, the Municipality will take steps in accordance

with law. If the Municipality comes to a finding that

there is a sanctioned plan but the impugned

construction deviates from such plan, appropriate

remedial measures will be taken by the Municipality.

Since we have not called for affidavits, the

allegations contained in the stay application are

deemed not to be admitted by the respondents.

Accordingly, MAT 834 of 2023 is disposed of

along with the application being I.A. No. CAN 1 of

2023.

Urgent certified photostat copy of this order, if

applied for, shall be given to the parties as

expeditiously as possible on compliance with all the

necessary formalities.

(Arijit Banerjee, J.)

(Apurba Sinha Ray, J.)