Calcutta High Court (Appellete Side)
Bimala Devi Shaw vs Dankuni Municipality & Ors on 12 September, 2023
8.
12-09-2023
(Ct. no.06)
debajyoti
IN THE HIGH COURT AT CALCUTTA
Civil Appellate Jurisdiction
APPELLATE SIDE
MAT 1089 of 2023
+
IA NO:CAN/1/2023
+
CAN/2/2023
Bimala Devi Shaw
Vs.
Dankuni Municipality & Ors.
Mr. Sibaji Kumar Das,
Mr. Debarshi Brahma
... For the Appellant.
Mr. Anujit Mukherjee
... For the Private Respondents.
CAN 1 of 2023 is an application for condonation
of delay of 30 days, as per report of the Additional
Stamp Reporter, in filing the appeal. Causes shown
being sufficient, the delay is condoned.
The application being CAN 1 of 2023 is, thus,
allowed.
Re : MAT/1089/2023 & CAN/2/2023
By consent of the appearing parties, the appeal
and the connected application are taken up together
for hearing.
The appellant is aggrieved by a judgment and
order dated March 31, 2023, whereby her writ petition
being WPA 19943 of 2022 was disposed of by a
learned Single Judge of this Court.
It appears that in an earlier round of litigation,
the appellant had approached a learned Single Judge
of this Court by filing WPA 9052 of 2020, alleging that
the private respondents, who are officials of a local
club, have encroached on her land and had made
construction thereon. Police have taken no steps in
spite of complaint being lodged.
On August 26, 2021, when that earlier writ
petition came up before the learned Single Judge, the
private respondents were not represented. It was
submitted on behalf of the State that on enquiry, the
police have learnt that the private respondents had
made a construction. The police have submitted
prosecution under Sections 107/116(c) of the Code of
Criminal Procedure. The learned Judge directed the
police to ensure presence of the private respondents
on the next date.
The writ petition again came up for hearing on
March 29, 2022. The learned Single Judge disposed
of the writ petition with the following order:-
" Executive Officer, Dankuni
Municipality has filed a report that he
could not inspect the premises since no
surveyor was available. The report is
taken on record.
The petitioner may approach the
B.L. & L.R.O., Chanditala for
appropriate demarcation of her premises
and take appropriate civil remedies
against the private respondents. "
The appellant approached the learned Single
Judge in the present round of litigation with the
grievance that the private respondents have made
unauthorized construction without obtaining sanction
from the Municipality. The learned Judge, after
hearing the parties, disposed of the writ petition with
the following observations and directions:-
" The petitioner submits that the
private respondents have forcefully
raised construction over the land of the
petitioner without a valid sanction
plan.
I have heard the submissions made
on behalf of the parties.
As it appears that the allegation
of the petitioner is regarding
encroachment and forceful occupation of
the petitioner's land by the private
respondent and raising construction
thereon, accordingly, the Municipality
will not be the appropriate authority to
decide the issue.
It will be open for the petitioner
to approach the competent court for
obtaining relief against forceful
encroachment of land. "
Being aggrieved, the writ petitioner has preferred
the instant appeal.
Learned advocate for the appellant says that the
issue that the appellant agitated by way of the writ
petition before the learned Single Judge is
unauthorized construction more than encroachment.
The Municipality should consider whether the
construction raised by the private respondents or
which they are occupying has the sanction of law.
Learned advocate for the private respondents
says that more than 20 years ago, the land in
question along with structures thereon, was gifted by
the owner of the land to the club, which has been in
occupation of the property since then. The club pays
Property Tax. It is a registered society. Further, the
club has not encroached on anybody's land.
We are of the view that it will be beyond the
competence of the Municipality to decide any question
of title or encroachment. However, if the appellant
identifies the structures/buildings, which, according
to the appellant, are unauthorized, the Municipality
should ascertain whether the same is supported by a
sanctioned plan. After all, no construction without a
sanctioned building plan should be allowed to stand.
Accordingly, we grant liberty to the appellant to
make a comprehensive representation to Dankuni
Municipality within a fortnight from date. If such
representation is made within the time period
indicated, the Municipality shall take a reasoned
decision thereon, in accordance with law and
applicable rules and regulations, within a period of six
weeks from the date of receipt of the representation,
after affording opportunity of hearing to both the
appellant and private respondents herein. If for that
purpose, the competent officer in the Municipality
needs to conduct a local inspection, he shall do so in
the presence of the appellant or her representative
and the private respondents or their authorized
representatives and the appellant or her
representative may identify the building, which,
according to her, is unauthorized. Further
consequential action may be taken by the
Municipality depending on its final decision.
We make it clear that we have not gone into the
merits of the case at all including the question of
encroachment. The Municipality shall only decide
whether or not the structures in question are
unauthorized and shall not go into the question of
title or encroachment.
The appeal and the connected application are,
accordingly, disposed of.
Affidavits not having been called for, the
allegations in the application for appropriate order
shall be deemed not to have been admitted by the
respondents.
All parties shall act on the server copies of this
order duly downloaded from the official website of this
Court.
Urgent photostat certified copies of this order, if
applied for, be supplied to the parties on compliance
of all necessary formalities.
(Arijit Banerjee, J.)
(Apurba Sinha Ray, J.)
