Himanga Mercantile Private ... vs Madhusree Industries Private ...
2023 Latest Caselaw 6919 Cal

06.    10.10.2023
        Court No.6
      .Tanmoy Ghosh

                                         MAT 1963 of 2023

                          Himanga Mercantile Private Limited & Anr.
                                          -Versus-
                          Madhusree Industries Private Limited & Ors.

                                                With
                                        IA No: CAN/1/2023
                                                With
                                        IA No: CAN/2/2023
                                                With
                                        IA No: CAN/3/2023


                          Mr. Arindam Banerjee, Adv.,
                          Ms. Arpita Saha, Adv.,
                          Ms. Rituparna Chatterjee, Adv.,
                          Ms. Khushboo Chaudhary, Adv.
                                               ...for the appellants/applicants.


                           Affidavit of service filed in Court today be kept with

                      the records.

                           It does not appear that the writ petitioners/

                      respondent nos. 1 and 2 herein have received notice of

this appeal. However, we need not defer hearing of this

appeal since the present intending appellants are

successors-in-interest of the writ petitioners insofar as

the property in question is concerned.

In spite of service, neither the Municipality, nor the

State is represented.

In Re: IA No: CAN/1/2023

This is an application for leave to appeal against a

judgment and order dated July 24, 2023, whereby the

writ petition filed by the respondent nos. 1 and 2 herein

being WPA 13505 of 2018, was disposed of by a learned

Single Judge of this Court.

The present applicants were not parties to the writ

petition. They came into the picture a few months ago

when they purchased the concerned property from the

writ petitioners.

The writ petitioners had approached the learned

Single Judge with the grievance that unauthorized

construction was made touching the boundary wall of

their premises and encroaching on public paths. Various

reports were filed by the Municipality. Ultimately, on the

day when the writ petition came up for final hearing, it

was submitted on behalf of the present applicants that

they should be allowed to step into the shoes of the writ

petitioners, having acquired the property in question

from the writ petitioners. Such request was not granted

by the learned Judge. The learned Judge disposed of the

writ petition granting liberty to the appropriate parties to

make representation to the Municipality seeking removal

of the unauthorized structures.

The applicants say that the applicants ought to

have been permitted to step into the shoes of the writ

petitioners and carry the writ petition to its logical

conclusion. That would have avoided multiplicity of

proceedings. Now, if the learned Judge's order is to be

followed, that may give rise to various legal proceedings.

Hence, the applicants are aggrieved.

We have heard learned Counsel for the applicants.

We are of the view that the applicants may have

something to say as regards the order sought to be

impugned. Leave is granted to the applicants to prefer

appeal against the judgment and order dated July 24,

2023.

Accordingly this application being IA No:

CAN/1/2023 is allowed and disposed of.

In Re: MAT 1963 of 2023 With IA No: CAN/2/2023 With IA No: CAN/3/2023

With the consent of learned Counsel appearing for

the appellants, the appeal and the connected

applications are taken up together for hearing.

According to the appellants, the learned Judge, by

the order impugned, in effect directed initiation of

proceedings under Section 218 of the West Bengal

Municipal Act, 1993 (hereinafter referred to as the '1993

Act'). Learned Counsel for the appellants say that such a

long drawn process may not be necessary since the

relevant provision in this case is not Section 218 but

Section 184 of the 1993 Act, which prescribes the

procedure for removal of encroachments on public

streets, etc. Learned Counsel says that in this case,

there is no dispute that the unauthorized stalls have

been erected on public footpath. The same ought to be

removed. Earlier, an order had been passed by the

Chairperson of the Municipality for removal of such

illegal structures. The order was partly implemented.

The structures touching the boundary wall of the

concerned property were removed but other structures

were left untouched. Learned Counsel submits that the

remaining structures, which are indisputably without

sanction of the Municipality, should be forthwith

removed.

If unauthorized construction has been made,

whoever be the person responsible, such construction

must be removed. The provisions of the Municipal Act

must prevail. However, we do not find on record any

order of the Board of Councillors of the Municipality

directing removal of the unauthorized construction

raised on public path. Section 184 of the 1993 Act

requires the Board of Councillors to pass such an order.

Even if the Chairperson of the Municipality had passed

such an order earlier, the same would not be sufficient

because the Chairperson is not authorized to issue such

order. Hence, we are of the view that the best avenue for

the appellants to seek redressal of their grievance is to

make a comprehensive representation to the Board of

Councillors of Barasat Municipality with supporting

materials ventilating their grievance. If such a

representation is made within a fortnight from date, the

same shall be disposed of by the Board of Councillors,

by a reasoned order, in accordance with law, within

eight (8) weeks from the date of receipt of a copy of this

order along with a copy of the representation, after

granting opportunity of hearing to the appellants herein

as also all other concerned parties, as the Board of

Councillors may deem fit and proper. Needless to say, if

the appellants are correct in saying that illegal

constructions have been made by encroaching on a

public path, the Board of Councillors would consider

exercising its power under Section 184 of the 1993 Act.

It is made clear that if the Board of Councillors finds

that this is a fit case for exercise of power under Section

184 of the 1993 Act, the question of granting hearing to

any other party may not arise since Section 184 of the

1993 Act contemplates urgent action by the Board of

Councillors or by any Officer authorized by it, even

without notice to any party.

We further direct that in the event the Board of

Councillors come to a conclusion that action is

necessary whether under Section 184 of the 1993 Act or

under any other provision of the Act, such action will be

taken and completed within six (6) weeks from the date

of the reasoned order being passed by the Board of

Councillors.

A report will be prepared by the Board of

Councillors, Barasat Municipality, recording compliance

of this order and the same shall be retained with the

records of the Municipality. A copy of such compliance

report will be made available to the appellants within a

fortnight from the date of the report.

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 1963 of 2023 and the

connected applications being IA No: CAN/2/2023 and IA

No: CAN/3/2023 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.)