Biman Ganguly & Anr vs The State Of West Bengal & Others
2023 Latest Caselaw 6060 Cal

12.09.2023
Item No.2.
Court No.6.
   AB
                                M.A.T. 1763 of 2023
                                        With
                                 I A CAN 1 of 2023

                                Biman Ganguly & Anr.
                                         Vs
                          The State of West Bengal & Others

                    Ms. Reshmi Ghosh,
                    Ms. Barnali Gantait       ...for the Appellants.

                    Mr. Somnath Ganguly,
                    Mr. Sukalpa Seal     ...for the State.

                    Mr. Dipankar Dandapath
                                    ......for the Respondent No.6.

Mr. Samiran Mondal, Mr. Abhinaba Dan ......for the Bankura Municipality.

By consent of the parties, the appeal and the

connected application are taken up for hearing

together.

Affidavit of service filed in Court today be kept

with the records.

A judgment and order dated August 28, 2023,

whereby the writ petition of the present appellants

being WPA 7855 of 2018 was disposed of by a learned

Single Judge of this Court, is under challenge in this

appeal at the instance of the writ petitioners.

The appellants/writ petitioners are the owners of

R. S. Plot No.6669 within Bankura Municipality. The

question that arose before the learned Single Judge

was whether or not the writ petitioners by raising

boundary wall have caused obstruction on the

municipal road, which falls on adjacent R. S. Plot

No.6670 and also whether or not the writ petitioners

have encroached on municipal road by extending the

first floor of their building by cantilever. These

allegations were made by the private respondent, who

had lodged complaint with the Bankura Municipality.

Alleging inaction on the part of the Municipality,

the private respondent had approached a learned

Single Judge of this Court by filing WPA 13535 of

2015. That writ petition was disposed of by the learned

Judge by a judgment and order dated January 8,

2018, directing Bankura Municipality to look into the

matter, hold necessary local inspection and take a

decision as regards the allegations made by the private

respondent against the writ petitioners. The

Municipality was directed to pass a reasoned order

after granting opportunity of hearing to all concerned

parties.

Pursuant to the order of the learned Single

Judge, the Board of Councillors of the Municipality, by

Resolution dated March 5, 2018, authorized the

Chairman of the Municipality to carry out the exercise

that had been directed by the learned Judge.

Inspection was duly conducted and as per the finding

of the Municipality, the road on R. S. Plot No.6670 was

found to be blocked by construction of wall at both

ends in front of the building of the writ petitioners. The

order dated May 21, 2018, that was passed by the

Municipality, also mentioned encroachment on

municipal land by extension of first floor by

constructing cantilever.

It appears that challenging the order dated

January 8, 2018, the writ petitioners had preferred an

appeal being MAT 349 of 2018. However, on June 13,

2018, that appeal was dismissed for non-prosecution.

The learned Single Judge, just to be sure that

the order dated May 21, 2018, passed by the

Municipality, reflected the correct picture, called for

further inspection report from the Municipality and

also called for an affidavit from the private respondent.

The same were filed before the learned Judge. The

learned Judge found that the order dated May 21,

2018, passed by the Municipality, is corroborated by

the further inspection report as also by the affidavit

filed by the private respondent.

Noting the aforesaid and also noting that the

writ petitioners had abandoned their appeal against

the order passed by the learned Single Judge on

January 8, 2018, in the earlier round of litigation, the

learned Single Judge disposed of the writ petition with

the following directions:

"In view of aforesaid facts this Court directs the concerned authority of Bankura Municipality to remove obstructions made by the petitioners on the municipal road falls on R. S. Plot No.6670 as well as to demolish the extension of the first floor made by the petitioners using cantilever which is above the said municipal road within a

period of eight weeks from the date of communication of this order.

It will be open to the concerned authority of the municipality to approach the concerned police authorities for extending necessary help in order to complete the demolition work. If the concerned police authorities are approached by the Bankura Municipality for providing necessary assistance in order to facilitate demolition work the police authorities are also directed to provide necessary support and assistance."

Being aggrieved, the writ petitioners are before

us by way of the present appeal.

      We      have        heard     learned    Counsel        for    the

appellants,    the        private    respondent       as     also    the

Municipality. We find that disputed questions of fact

are involved in the matter. While the Municipality and

the private respondent say that the appellants have

encroached on municipal road by extending cantilever

and have also blocked the municipal road, the

appellants completely deny the same. The appellants

rely on certain C. S. Records as also maps. However,

the Writ Court cannot conveniently or effectively

decide such disputed questions of fact.

The learned Judge passed the impugned order

on the basis of records before His Lordship. We do not

find any apparent infirmity in the same. We do not

interfere. The appeal and the connected application

are dismissed.

However, dismissal of this appeal will not

prevent the appellants/writ petitioners from

approaching the appropriate forum with their

grievance/claim, in accordance with law. If they do

approach such forum, their suit/application will be

decided by the forum in accordance with law,

uninfluenced by anything in this order or in the order

of the learned Single Judge, which is impugned before

us.

Learned Advocate for the appellants requests us

to grant some interim protection permitting the

appellants to approach the appropriate forum. We are

not inclined to do so. Needless to say, if the

Municipality removes the impugned construction

before the appellants can obtain interim protection

from the appropriate forum and the appellants can

demonstrate that such removal is wrongful, they will

be entitled to claim damages in accordance with law.

Since we have not called for affidavits, the

allegations in the stay application are deemed not to

be admitted by the respondents.

Urgent photostat certified copy of this order, if

applied for, be supplied expeditiously after compliance

with all the necessary formalities.

(Arijit Banerjee, J.)

(Apurba Sinha Ray, J.)