Sri Narayan Middey vs The State Of West Bengal & Ors
2023 Latest Caselaw 3810 Cal

   D/L
Item No 08
12.06.2023
 KOLE
                              MAT 486 of 2023
                                   With
                            IA No. CAN 1 of 2023

                           Sri Narayan Middey
                                   -Vs.-
                      The State of West Bengal & Ors.


             Mr. Purnasish Gupta,
             Mr. Jayanta Kr. Mukhopadhyay,
             Mrs. Sruti Dey,
                                                        ... for the appellant.
             Mr. Bibek Jyoti Basu,
             Mr. B. Ahmed,
                                                               ... for the State.
             Mr. Rohit Das,
             Ms. K. Rahman,
             Mr. P. Majumdar,
                                                 ... for the respondent no. 3.

By consent of the parties the appeal and the

application are taken up for hearing together.

A judgment and order dated March 1, 2023, whereby

the appellant's writ petition was in effect dismissed, is under

challenge in this appeal.

It appears that the appellant made a construction of a

one storeyed building for the purpose of residing therein.

However, prior to constructing the building, he did not seek

permission from the concerned authority being the

Maheshpur Gram Panchayat. After the construction was

completed, vide a letter dated January 6, 2023, addressed to

the Pradhan of the said Gram Panchayat, the appellant

sought post facto permission of the Panchayat. Such request

of the appellant was turned down by the Pradhan by

observing that since the construction has already been

completed without obtaining prior permission, the request

for permission is rejected.

It further appears that a demolition order dated

January 13, 2023 was passed by the Sub-Divisional Officer,

Uluberia, Howrah, pursuant to a direction by a learned

Judge in WPA 25340 of 2022. By the said order, the Sub-

divisional Officer, in exercise of his power under Section

23(5) of the West Bengal Panchayat Act, 1973, called upon

the appellant to demolish the unauthorized structure within

15 days from the date of communication of the order, failing

which the Pradhan of the concerned Gram Panchayat was

directed to fix a date for demolition of the structure and to

demolish the same if necessary by taking police assistance.

The Sub-divisional Officer directed the Pradhan of the

concerned Panchayat to file a compliance report.

Assailing the Sub-divisional Officer's demolition order

dated January 13, 2023, the appellant approached the

learned Single Judge in the present round of litigation.

The learned Judge noted that admittedly the writ

petitioner did not apply for permission before the concerned

permission granting authority, i.e., Maheshpur Gram

Panchayat, in terms of Section 23(1) of the 1973 Act and the

Rules framed thereunder. The learned Judge further

observed that the Panchayat Act does not provide for post

facto approval of an unauthorized structure. In any event,

the writ petitioner had not applied for permission under the

law in terms of Section 23 read with Rule 17 of the West

Bengal (Gram Panchayat Administration) Rules, 2004. With

those observations, the learned Judge disposed of the writ

petition without passing any order in favour of the writ

petitioner.

Being aggrieved, the writ petitioner has come up by

way of this appeal.

Learned Advocate for the appellant says that it is the

discretion of the Sub-divisional Officer under Section 23(5)

of the Panchayat Act as to whether or not to order

demolition of an unauthorized structure. Post facto

regularization of a construction made without prior

permission of the concerned authority, is permissible in law.

The appellant belongs to the weaker section of the society

and was compelled to make the construction for using the

same as residence for himself and his family. His case

should be considered sympathetically. There are several

instances where the Panchayat had not taken any action

against unauthorized construction. Learned Advocate says

that the Sub-divisional Officer should re-consider his

demolition order in the light of the aforesaid circumstances.

Learned Advocate for the appellant also relied on an

order dated November 23, 2017 passed by a Coordinate

Bench in MAT 2007 of 2013 (Sumitra Kanrar-vs.-Sanjit

Jana & Ors.) in support of his submission that post facto

sanction can be granted by the permission granting authority

in respect of unauthorized construction. We have gone

through that order. Firstly, there is no discussion in the

order as to whether or not the permission granting authority

can accord post facto sanction under the provisions of the

Panchayat Act, 1973. Secondly, the court only recorded the

submission made on behalf of the Howrah Zilla Parishad

that it had regularized the construction in question. Thirdly,

bye-laws 15 of the Howrah Zilla Parishad permitted post

facto regularization as recorded in the said order. That order

therefore, in our opinion does not come to the aid of the

present appellant in any manner.

We have also heard Mr. Basu, learned Advocate for

the State, who vehemently opposes the prayer made by the

appellant. He says that a citizen cannot take law into his

own hands. The law required the appellant to obtain prior

permission before he made the impugned construction. He

did not care to do so. He applied only after completing the

construction. This is not what is envisaged under the

applicable law. No leniency should be shown to a person

who consciously flouts the law of the land.

We have given our anxious consideration to the rival

contentions of the parties. We see no infirmity in the order

under appeal. Admittedly, the appellant did not obtain or

even apply for prior permission of the Gram Panchayat. He

merrily went ahead and raised the construction which is

completely unauthorized. He may have had pressing need

for residential accommodation but that did not give him the

license to take law into his own hands and build a house

without even bothering to seek permission from the relevant

statutory authority. We have no sympathy for a person who

does not have respect for the law of the land. Rule of law

must prevail at all costs. Otherwise, there will be total

anarchy. Sympathy cannot be the basis for passing order in

a court of law.

The grievance of the appellant that there are other

cases of unauthorized construction in which the Panchayat

has not taken any step, may be addressed at a different level.

In any event, if a few persons have managed to escape the

rigors of law wrongfully, that would not entitle the other

members of the society to commit the same wrongful act.

Article 14 of the Constitution of India does not contemplate

negative equality.

In view of the aforesaid, we are not inclined to

interfere with the order under appeal.

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.

(Arijit Banerjee, J.)

(Rai Chattopadhyay, J.)