Gopal Chandra Pal vs Debasish Bose & Ors
2023 Latest Caselaw 6777 Cal

07.      05.10.2023
        Court No.6
      .Tanmoy Ghosh

                                           MAT 1375 of 2023

                                         Gopal Chandra Pal
                                              -Versus-
                                       Debasish Bose & Ors.
                                                With
                                        IA No: CAN/1/2023
                                                With
                                        IA No: CAN/2/2023

                          Mr. Saibal Kumar Acharya, Adv.,
                          Mr. Debabrata Koley, Adv.,
                          Mr. Sukhendu Bikash Mukherjee, Adv.
                                                ...for the appellant.

                          Mr. Tanmoy Khan, Adv.
                                                ...for the respondent no.1/

writ petitioner.

Mr. Pritam Choudhury, Adv., Ms. Debleena Dasgupta, Adv.

...for the State.

Mr. Suman Basu, Adv.

...for the respondent nos. 3&4.

Affidavit of service filed in Court today be kept

with the records.

In Re: IA No: CAN/1/2023 This is an application for condonation of delay of

thirty eight (38) days in filing the appeal, as noted by

the Stamp Reporter. Causes shown being sufficient, the

delay is condoned. The application being IA No:

CAN/1/2023 is accordingly disposed of.

In Re: MAT 1375 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.

This appeal is directed against a judgment and

order dated May 17, 2023, whereby the writ petition of

the respondent no.1 herein being WPA 11654 of 2023

was disposed of by a learned Single Judge of this Court.

The appellant was the respondent no.7 in the writ

petition.

The respondent no.1/writ petitioner approached

the learned Single Judge with the complaint that the

present appellant had raised a four-storeyed building on

plot no. 2776/4551 of Mouza - Jalaghata, without any

permission being obtained from the Competent

Authority. The appellant herein denied such allegation.

The Hooghly Zilla Parishad submitted that it could not

come to a conclusion without making any enquiry.

The learned Judge disposed of the writ petition

without going into the merits of the allegations and

counter-allegations levelled by the parties against one

another with a direction upon the Competent Authority

of the Hooghly Zilla Parishad to consider the

representation of the writ petitioner which was annexed

at page 18 of the writ petition.

The learned Judge delineated certain steps to be

followed by the Zilla Parishad while considering the writ

petitioner's representation, e.g. holding joint inspection

of the concerned site, preparing inspection report,

making the same available to the parties, affording

opportunity of hearing to the parties and then finally

passing a reasoned order. The entire exercise was

directed to be completed within four months from the

date of communication of the order. It was clarified that

questions of right, title, interest, encroachment etc.,

shall not be gone into by the Zilla Parishad.

Being aggrieved, the respondent no.7 has come up

by way of this appeal.

It is submitted by learned Advocate for the

appellant that the respondent no.1 herein has no locus

standi to maintain the writ petition. He is not an

aggrieved party. He is not prejudiced in any manner by

the building that has been constructed by the appellant.

Secondly, learned Advocate for the appellant submitted

that the learned Single Judge did not grant an

opportunity to the respondent no.7 in the writ petition

(appellant herein) to file affidavit before disposing of the

writ petition.

We have not called upon learned Advocates for the

respondents to make submissions.

Insofar as the question of locus standi is concerned,

it is not disputed that the writ petitioner resides in the

locality where the appellant resides and where he has

made the alleged unauthorized construction.

In view of the decision of the Hon'ble Supreme

Court in the case of Dipak Kumar Mukherjee - Vs. -

Kolkata Municipal Corporation & Ors., reported in

(2013) 5 SCC 336, the principle of locus standi has

undergone a sea change and stands relaxed to a great

extent where unauthorized construction is under

challenge. We are of the opinion that the writ petitioner

had every locus to maintain the writ petition.

Insofar as the question of granting an opportunity

to the appellant herein to file affidavit is concerned, we

are of the view that the course adopted by the learned

Single Judge is a reasonable and prudent one and it was

not necessary for the learned Single Judge to call for

affidavits. After all, factual disputes would inevitably be

involved which a writ Court cannot conveniently decide

on affidavits. The Zilla Parishad is the appropriate

Authority, which can go into the question of alleged

unauthorized construction and the learned Judge rightly

relegated the matter to the Zilla Parishad.

We do not see any infirmity in the order under

appeal. The appellant and the writ petitioner/respondent

no.1 herein will have full opportunity of participating in

the proceedings before the Zilla Parishad and both of

them will be at liberty to produce all documents as they

may be advised, before the Zilla Parishad.

We do not interfere with the order under appeal.

However, the time for the Zilla Parishad to complete the

exercise, directed by the learned Single Judge, shall

stand extended till December 31, 2023.

Since we have not called for affidavits, the

allegations in the stay petition shall be deemed not to

have been admitted by the respondents.

The appeal being MAT 1375 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.)