Bhagya Roy vs The State Of West Bengal & Ors
2023 Latest Caselaw 6001 Cal

   D/L
Item No. 07
08.09.2023
 KOLE

                               MAT 1015 of 2023
                                    With
                               IA CAN 1 of 2023
                                    With
                               IA CAN 2 of 2023

                                 Bhagya Roy
                                    -Vs.-
                       The State of West Bengal & Ors.


              Mr. Dilip Kumar Samanta,
              Mr. B. Samanta,
              Ms. Tithi Paul,
                                                          ... for the appellant.
              Mr. Suman Ghosh,
              Mr. N. Roy,
                                                             .... For the State.
              Mr. Lalit Mohan Mahato,
              Mr. Z. Haque,
                                                  ... for the respondent no. 8.

Mr. Debjit Mukherjee, Ms. S. Chatterjee, ... for the respondent nos. 12 and 13.

Mr. Sounak Bhattacharyya, Ms. S. Chakraborty, ... for the respondent nos. 14, 15, 17, 18 and 20.

In Re: CAN 1 of 2023 in MAT 1015 of 2023:

This is an application for condonation of delay of 18

days in presenting the appeal as noted by the Additional

Stamp Reporter.

Causes shown being sufficient, we condone the delay.

CAN No. 1 of 2023 is, thus, allowed.

In Re: MAT 1015 of 2023 and CAN 2 of 2023:

By consent of the parties, the appeal and the

connected application are taken up for hearing together.

This appeal is directed against a judgment and order

dated April 17, 2023, whereby the appellant's writ petition

being WPA 7019 of 2023 was disposed of by a learned Single

Judge of this Court.

The appellant had approached the learned Single

Judge with the allegation that the respondent nos. 12 and 13

had raised certain unauthorized constructions on a debottur

property by filling up a pond. It was further alleged that

after construction of shop rooms on the debottur property,

the same were handed over to the respondent nos. 14 to 20

who set up stalls and are carrying on business therefrom. It

was further submitted that several mass petitions had been

filed before the concerned Block Development Officer, the

District Magistrate, Hooghly and the Pradhan of the

concerned Gram Panchayat. The learned Judge's attention

was also drawn to a communication from the District

Magistrate, Hooghly, whereby the concerned Block

Development Officer was directed to take necessary steps in

the matter.

The learned Advocate for the respondent nos. 12 and

13 denied the locus standi of the petitioner to maintain the

writ petition on the ground that the debottur was not a

public debottur. Attention of the learned Judge was also

drawn to proceedings pending before the competent Civil

Court where the plaintiffs failed to obtain restraint orders

against the present respondent nos. 12 and 13 herein.

Certain documents were produced before the Learned

Single Judge. Learned Advocate for the respondent no. 12

handed up a document which was a plan sanctioned by the

concerned Gram Panchayat for construction of shop rooms

on plot no. 4519. Learned Advocate for the State referred to

a letter dated January 19, 2023, issued by the Block

Development Officer, addressed to the concerned Block

Land & Land Reforms Officer to make an enquiry with

regard to the construction on plot no. 4510 which is a pond.

As per the report of the Block Land & Land Reforms Officer,

no portion of the water body had been illegally filled up.

Report was also submitted by the Pradhan of the concerned

Gram Panchayat to the Block Development Officer which

showed that the Pradhan had given sanction for making

construction on plot no. 4519 and not on plot no. 4510 or

plot no. 4514. The learned Judge further noted that the writ

petitioner had also approached the West Bengal Pollution

Control Board with the allegation of illegal filling up of the

pond.

A report of the Revenue Inspector of the concerned

Gram Panchayat showed that construction of shop rooms

had been made on dag no. 4519 which is adjacent to plot no.

4510 and that such shop rooms were constructed on the edge

of the pond but not affecting any portion of the pond. The

shops were being run after obtaining requisite permission,

trade license and electric connections.

Noting the aforesaid, the learned Judge concluded

that no order could be passed in favour of the writ petitioner.

The learned Judge disposed of the writ petition with the

following observations:-

"However, as it is the contention of the petitioner that apart from the Plot No. 4519, constructions had been made illegally on Plot No. 4515 ad 4510, such issue has to be

decided by the gram panchayat. Further allegation of construction over a 'doba', without any conversion, has also been made. The petitioner has liberty to approach the respective authorities, in accordance with law with the above allegations.

If complaints are filed, the same will be disposed of by the respective competent authorities, upon giving an opportunity of hearing to the petitioner and all the other respective interested parties.

The allegation of respondent no. 10 that the respondent nos. 12 and 13 did not have any right to obtain permission from the panchayat authorities for construction of shop-rooms on a debuttar property by ignoring the said respondent, and the respondents should be restrained from unilaterally dealing with the property, can be raised before the learned Civil Court and the learned civil court shall decide such issue.."

Being aggrieved, the writ petitioner has come up

before us by way of this appeal.

Appearing for the appellant/writ petitioner, Mr.

Samanta, learned Advocate, submitted that though sanction

had been obtained from the competent authority for making

construction on plot no. 4519, in fact, construction has been

made by the respondent nos. 12 and 13 on plot no. 4514.

This is grossly illegal and the impugned constructions should

be demolished forthwith. No submission was made before

us as regards illegal filling up of the pond being plot No.

4510. We called for the writ petition. We did not find that

the point that is being argued before us has been taken in the

writ petition. It is nowhere alleged in the writ petition that

the respondent nos. 12 and 13 having obtained permission

for making construction on plot no. 4519, in fact, made

construction on plot no. 4514. Since this is a factual issue,

we cannot permit the appellant to raise this for the first time

before us.

Even otherwise, we have carefully gone through the

order of the learned Single Judge and we have noted the

salient portions thereof. Based on reports of various

Government Authorities and Panchayat Authorities, the

learned Judge has come to the conclusion that there is no

construction on plot no. 4510 which is the pond, nor on plot

no. 4514. The Learned Judge has, however, granted liberty

to the appellant/writ petitioner to approach the appropriate

authority with any grievance that the writ petitioner may still

have.

We do not find any such infirmity in the judgment

and order assailed before us, as would persuade us to

interfere. We, accordingly, dismiss the appeal and the

connected application affirming the order of the learned

Single Judge. The appellant would be at liberty to take

appropriate steps in accordance with law in terms of the

order of the learned Single Judge.

Since we have not called for affidavits, the allegations

made in the stay application are deemed not to be admitted

by the respondents.

The appeal and the connected application are,

accordingly, disposed of.

Urgent photostat certified copy of this order be

supplied to the parties, if applied for, as early as possible.

(Apurba Sinha Ray, J.) (Arijit Banerjee, J.)