Calcutta High Court (Appellete Side)
Saharul Molla vs Yusuf Seikh & Ors on 19 May, 2023
01. 19.05.2023
Court No.6
Tanmoy Ghosh
MAT 828 of 2023
Saharul Molla
-Versus-
Yusuf Seikh & Ors.
With
IA No: CAN/1/2023
With
IA No: CAN/2/2023
Mr. Debabrata Saha Roy, Adv.,
Mr. Lakshmi Nath Bhattacharyya, Adv.,
Mr. Neil Basu, Adv.,
Mr. Sankha Biswas, Adv.
...for the appellant/applicant.
Mr. Balai Lal Sahoo, Adv.,
Mr. Md. Zeeshanuz Zaman, Adv.
...for the respondent no.1/
writ petitioner.
Mr. Chandi Charan De, Ld. AGP,
Mr. Anirban Sarkar, Adv.
...for the State.
Mr. Tapash Kr. Mondal, Adv.
...for the Zilla Parishad,
South 24-Parganas.
In Re: IA No: CAN/1/2023
The applicant prays for leave to prefer appeal against
a judgment and order dated May 4, 2023, whereby the writ
petition of the respondent no.1 herein being WPA 7184 of
2023, was disposed of by a learned Single Judge.
The applicant was not a party to the writ application.
The applicant says that the order that is sought to be
impugned by him, seriously affects him.
We have heard learned Counsel for the parties. We are
of the view that the applicant may have something to say.
Hence we grant leave to the applicant to prefer appeal
against the judgment and order dated May 4, 2023.
Accordingly this application being IA No: CAN/1/2023
is allowed and disposed of.
In Re: MAT 828 of 2023
With
IA No: CAN/2/2023
By consent of the parties, the appeal and the
connected application are taken up together for hearing.
The respondent no.1/writ petitioner is the owner of
a plot of land bearing no. 2548. He is also in occupation
of plot no. 2603/3276, where he claims, he runs a tea
stall for more than thirty three years. Apparently, he has
made construction on the said plot being no.
2603/3276. According to the appellant herein, such
construction is unauthorized and has been made on
PWD land. According to him, such construction is
seriously obstructing egress to and ingress from his
residential house. He made a complaint to the
appropriate Authority under the West Bengal Highways
Act, 1964 (hereinafter referred to as the 'said Act'). A
proceeding under Section 10(3) of the said Act was
initiated culminating in an order directing the writ
petitioner herein to remove the construction in question.
The writ petitioner preferred a statutory appeal under
Section 10(4) of the said Act, which was dismissed.
In the meantime, the writ petitioner had applied to
the Competent Authority for granting long-term
settlement in his favour in respect of plot no.
2603/3276. His representation/application not having
been considered, he had approached this Court in an
earlier round of litigation. The learned Single Judge
having declined to pass any interim order, the writ
petitioner had come up in appeal before us by way of
MAT 1747 of 2022. By a judgment and order dated
December 5, 2022, this Bench had disposed of the
appeal as well as the writ petition by directing the
District Magistrate and Collector, South 24-Parganas, to
take a reasoned decision on the writ petitioner's
representation dated October 11, 2022. Such decision
was taken by the District Magistrate who rejected the
writ petitioner's representation. Such rejection order was
challenged by the writ petitioner in the present round of
litigation before the learned Single Judge.
The learned Single Judge took note of the fact that
the writ petitioner's representation was rejected by the
Competent Authority without taking into consideration
Rule 238 of the West Bengal Land and Land Reforms
Manual, 1991. The learned Judge has accordingly set
aside the order rejecting the writ petitioner's application
for long-term settlement and has directed the Competent
Authority being the District Magistrate to pass a fresh
order after hearing the parties and taking into
consideration Rule 238 of the Manual within two months
from the date of communication of the order. Status quo
as regards the land was directed to be maintained by the
parties till a fresh decision is taken by the District
Magistrate.
The appellant says that although in principle the
appellant does not have any objection to the order of the
learned Single Judge being implemented by the District
Magistrate considering the writ petitioner's
representation afresh, since the decision of the District
Magistrate may have adverse civil consequences for him,
he should be allowed to participate in the hearing to be
held by the District Magistrate.
We think that the appellant has a point. In the
event the District Magistrate allows the writ petitioner's
prayer for long-term settlement, the same may have the
effect of nullifying the order directing him to remove the
construction that has been objected to by the appellant.
This would definitely affect the appellant adversely.
Therefore, without going into the merits of the case
at all we only direct that in any hearing that the District
Magistrate may hold in terms of the order of the learned
Single Judge, which is impugned herein, the appellant
will have a right to participate. Sufficient notice of such
hearing shall be given by the District Magistrate to the
appellant herein, needless to say that the District
Magistrate shall consider the representation of the writ
petitioner, in accordance with law.
We repeat that we have not applied our minds at all
to the merits of the writ petitioner's prayer for long-term
settlement or the appellant's grievance against the writ
petitioner.
Since we have not called for affidavits, the
allegations in the stay petition shall be deemed not to
have been admitted by the respondents.
With the aforesaid modification of the impugned
order, the appeal being MAT 828 of 2023 and the
connected application being IA No: CAN/2/2023 are
disposed of.
Let urgent photostat certified copy of this order, if
applied for, be made available to the parties upon
compliance with all requisite formalities.
(Arijit Banerjee, J.)
(Apurba Sinha Ray, J.)
