Sri Asish Chowdhury vs Suman Biswas
2023 Latest Caselaw 4404 Cal

20.07.2023
Item 32 & 33.
Court No.6.
  AB
                                  C.P.A.N. 342 of 2023
                                           In
                                  MAT No.87 of 2023

                                  Sri Asish Chowdhury
                                            Vs
                                      Suman Biswas

                      Mr. Dilip Kr. Samanta,
                      Mr. Debapriya Samanta .....for the Petitioner.

                      Mr. Pontu Deb Roy, ld. AGP,
                      Mr. Pannalal Bandopadhyay
                                       ....for the alleged Contemnor.

                      This contempt application has been taken out

                for alleged wilful violation of the judgment and order

                dated January 31, 2023, whereby MAT 87 of 2023 was

                disposed of along with the connected applications.

                      By the said order, we had affirmed the learned

                Single Judge's order dated September 16, 2022,

                whereby the writ petition of the private respondent in

the appeal was disposed of.

One Nirapada Maity had approached a learned

Single Judge by filing WPA No.20930 of 2022, alleging

that the private respondent therein, being the present

petitioner, i.e., Asish Chowdhury, had raised

unauthorized structure and an order should be passed

for demolition thereof. It appears that compliant had

first been lodged with the concerned Panchayet

Authorities. The Authorities had made a spot enquiry,

granted opportunity of hearing to the parties

concerned and thereafter had come to the conclusion

that Asish has indeed raised unauthorized structures.

The matter was sent to the concerned Sub Divisional

Officer in terms of Section 23(5) of the West Bengal

Panchayat Act, 1973. The grievance of Nirapada Maity

before the learned Single Judge was that the Sub

Divisional Officer was not taking any steps pursuant

to the reference made to him by the Panchayet

Authorities.

The learned Judge took note of the fact that at

the hearing before the Pradhan of the Gram

Panchayet, Asish (present petitioner) was not present.

Nirapada contended that Asish's brother was present

on behalf of Asish. Asish, however, stated that his

brother was not authorized by him to represent him.

Under those circumstances, the learned Judge

disposed of the writ petition by holding that the order

of the Panchayet Authorities to the effect that

unauthorized construction had been made by Asish,

may be treated as a prima facie finding. However, final

decision be taken after giving an opportunity of

hearing to Asish. The learned Judge laid down a

detailed procedure to be followed by the Panchayet

Authorities.

The said order was carried in appeal by Asish by

filing MAT 87 of 2023. This Division Bench did not

interfere with the order and affirmed the same by a

judgment and order dated January 31, 2023.

In the above factual background, the petitioner

came to us with the case that the order dated January

31, 2023 is not being complied with by the alleged

contemnor, who is the concerned Sub Divisional

Officer.

An affidavit of compliance has been filed by the

alleged contemnor to which a copy of an order dated

April 11, 2023, passed by the concerned Sub

Divisional Officer has been annexed. This order has

been passed in compliance with our order dated

January 31, 2023, although belatedly.

Mr. Samanta, learned Senior Counsel appearing

for the petitioner vociferously argued that the

concerned authorities did not follow the procedure

stipulated by the learned Single Judge and affirmed by

us. He contended that the authorities could not have

deviated from the procedure laid down in the said

order.

We understand the anxiety of the petitioner.

However, this is a contempt application and its scope

is limited. We find that our order in question has been

complied with by the alleged contemnor. The order of

the Sub Divisional Officer may not be acceptable to the

petitioner, who may be aggrieved thereby. However, we

cannot, in this proceeding, adjudge the correctness or

otherwise of the order of the Sub Divisional Officer.

The petitioner will be at liberty to challenge the said

order before the appropriate forum in accordance with

law since the same has furnished him with a fresh

cause of action.

In view of the aforesaid, the contempt

application stands disposed of.

After this order is passed, Mr. Samanta requests

this Court to grant a short interim protection to the

petitioner so that the petitioner may approach the

appropriate forum challenging the order of the Sub

Divisional Officer passed on April 11, 2023.

As requested, let the order of the Sub Divisional

Officer not be given effect to for a week from date.

Urgent Photostat Certified copy of this order, if

applied for, be supplied expeditiously after complying

with all necessary legal formalities.

(Arijit Banerjee, J.)

(Apurba Sinha Ray, J.)