Abhishek Roy & Ors vs State Of West Bengal & Ors
2023 Latest Caselaw 3772 Cal

09.06.2023
Item No.03
Court No.6.
    S. De
                               M.A.T. 1022 of 2023
                                        with
                               I.A. No. CAN/1/2023
                               I.A. No. CAN/2/2023

                              Abhishek Roy & Ors.
                                       Vs
                           State of West Bengal & Ors.

                    Mr. Raj Dip Ray,
                    Mr. Krishnendu Sarkar,
                    Mr. Gautam Dinda,
                    Ms. Mousumee Shome,
                    Mr. Sandip Ray,
                                      ...for the appellants.
                    Mr. Sirsanya Bandopadhyay,
                    Mr. Tirthankar Dey,
                    Mr. Arka Kr. Nag,
                                      ...for the B.M.C.
                    Mr. Prantick Ghosh,
                    Mr. Prasad Bhattacharyya,
                    Mr. Bitan Das,
                                      ...for the private respondent.

Mr. Lalit Mohan Mahata, Ld. A.G.P., Mr. P.B. Mahata, ...for the State.

By consent of the parties appeal and the

connected applications are taken up together for

hearing.

In re : I.A. No. CAN/2/2023

The applicants were not parties to the writ

petition. They say that the judgment and order dated

May 17, 2023, passed by the learned Single Judge on

the writ petition which is still pending, adversely

affects their rights. The order is for demolition of a

temple which, the appellants say, stands there for

about 100 years. The appellants are local residents.

They say that all the people of the locality offer their

puja in that temple. They say that the temple is not

causing any inconvenience to anybody. The order of

demolition should be recalled/set aside.

Having heard learned counsel for the applicants,

we are of the view that the applicants may have

something to say regarding the order sought to be

impugned. Leave to appeal is granted.

I.A. No.2 of 2023 is, accordingly, disposed of.

In re: MAT 1022 of 2023 & I.A. No. CAN/1/2023

It appears that the respondent/writ petitioner

approached the learned Single Judge with the

grievance that the impugned construction has been

raised unauthorizedly. No sanctioned plan for the

construction which happens to be a temple, could be

produced. The learned Judge observed that since

there is no sanctioned plan, Bidhannagar Municipal

Corporation (in short 'BMC') is duty-bound to remove

such unauthorized construction. The learned Judge

directed that the impugned structure shall be removed

positively by June 11, 2022. The learned Judge has

also directed the writ petition to be listed on June 19,

2023.

Heard learned counsel for the parties. It is true

that no construction without the permission of the

competent authority can be allowed to stand.

However, the appellants say that the construction in

question which is a temple, has been there for about

100 years. This is disputed by learned advocate for

the respondent/writ petitioner. The appellants say

that the sentiment of the local residents should be

considered by the authorities. They further say that

before demolition is effected, the authorities should

grant an opportunity of hearing to the local residents.

We are of the view that it will not prejudice

anybody if an opportunity of hearing is granted to an

authorized representative of Dud Pukur Shiv Mandir

which is the temple in question.

Accordingly we direct the Commissioner of BMC,

being the respondent no.4 herein to consider the

representation dated May 2, 2023 (copy whereof is

annexure 'B' to the stay petition), in accordance with

law, and dispose of the same by a reasoned order

within a period of four weeks from the date of receipt

of a copy of this order along with the copy of the

representation dated May 2, 2023, after affording an

opportunity of hearing to the authorized representative

of the temple in question and also to the writ petitioner

and/or his authorized representative. We make it

clear that we do not bind the hands of the respondent

no.4 in any manner. He is free to take such decision

as the law and the Building Rules and Regulations

warrant. In the event, the respondent no.4 is not

satisfied that the construction in question can be

allowed to stand, he will be at liberty to take

appropriate steps for its removal in accordance with

law within a period of four weeks from the date of

passing of the decision of the respondent no.4.

No useful purpose would be served by either

keeping the appeal or the writ petition pending.

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 1022 of 2023 is disposed of

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

2023. WPA 23133 of 2019 is also disposed of.

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.)