Sri Sobhan Roy vs Panihati Municipality & Ors
2023 Latest Caselaw 6293 Cal

   D/L
Item No. 03
20.09.2023
 KOLE

                               MAT 1316 of 2023
                                    With
                               IA CAN 1 of 2023

                               Sri Sobhan Roy
                                   -Vs.-
                         Panihati Municipality & Ors.

              Mr. Ranjan Kali,
              Mr. Sobhan Pathak,
                                                        ... for the appellant.

              Mr. Soumyajit Bhattacharyya,
                                                     ... for the Municipality.


                     By consent of the appearing parties, the appeal and

               the connected application are taken up for hearing together.

                     This appeal is directed against a judgment and order

               dated June 12, 2023, whereby the appellant's writ petition

               being WPA 28684 of 2022, was dismissed by a learned

               Single Judge of this Court.

                     In an earlier round of litigation, the appellant had

               approached a learned Single Judge of this Court by filing

               WPA 7032 of 2020, complaining that his brother, the private

               respondent, has constructed a building on a land adjacent to

the appellant's land without leaving adequate open space on

the eastern portion of the property, which is in violation of

the concerned Municipal Building Rules. His grievance was

that his compliant with the Chairman, Panihati Municipality

was not being considered. It was submitted on behalf of the

Municipality that pursuant to the complaint lodged, local

inspection was conducted and it was found that the

impugned construction was made according to the relevant

Municipal Building Rules under the H.F.A (House For All)

project which is a Central Government scheme. Learned

Advocate for the writ petitioner submitted before the learned

Single Judge that the enquiry/inspection should have been

made in his presence so that he could have apprised the

Municipality of the illegalities in the concerned construction.

The learned Judge disposed of the writ petition with

the following observations and directions:-

"Under such circumstance, the Executive Engineer, Panihati Municipality is directed to make a fresh inspection of the premises no. 52, Vivekananda Sarani (169) Police Station Khardah, Kolkata 700110 and premises no. 38, Vivekananda Sarani (169) Khardah, 24 Parganas(N) Kolkata 700110, that is the disputed holdings/plots in presence of all the parties by giving 48 hours prior notice to them, in order to ascertain whether the alleged construction was done according to the rules.

The petitioner and the respondent no. 10 are at liberty to indicate to the authorities their contentions with regard to the alleged unauthorized construction on the eastern side of the land running from North to South without leaving any space.

The Executive Engineer, Panihati Municipality after causing such inspection and giving hearing to all the parties shall pass a reasoned order. Such reasoned order should be communicated to all concerned.

The entire exercise should be completed within period of eight weeks from the date of communication of this order."

Pursuant to the said order, the Municipality through

its Board of Councilors passed an order which was

communicated by the Chairman of the Municipality to the

parties on July 4, 2022. The order was to the effect that after

holding inspection and hearing both the parties, it was found

that the impugned construction was neither illegal nor

unauthorized and not in violation of the relevant building

rules. It is this order that was challenged by the appellant

before the learned Single Judge in the present round of

litigation.

The primary complaint of the writ petitioner before

the learned Judge was that although the earlier order of this

Court passed in WPA 7032 of 2022 directed the Executive

Engineer of the Municipality to cause inspection, give

hearing to all parties and pass a reasoned order, the same

was done by the Chairman and/or the Board of Councilors.

This was not in consonance with the earlier order of this

Court.

It was further submitted that no notice of spot

inspection was issued to the writ petitioner and no

opportunity of hearing was granted to him.

Learned Advocate for the Municipality denied the

aforesaid allegations. He submitted that notice of spot

inspection was issued to both the writ petitioner and the

private respondent who were both represented at the time of

inspection. Hearing was also granted to both the parties and

only thereafter the order was passed by the Board of

Councilors.

Learned Advocate for the Municipality also produced

documents demonstrating that notice of spot inspection was

issued to both the parties. Notice of further spot inspection

was also issued. The notices were received by the parties and

they were duly represented at the time of spot inspection and

at the time of hearing.

Having considered the inspection report, the Board of

Councilors came to the conclusion that there is no

unauthorized construction. There is sufficient open space

between the two premises.

The learned Judge came to the conclusion that the

Board of Councilors acted in a reasonable manner in

deciding the objection filed by the writ petitioner. The

learned Judge also observed that under the relevant law, the

Board of Councilors is the appropriate authority to take a

decision in the matter. After observing that the writ

petitioner's allegation of unauthorized construction on the

part of the private respondent remains unsubstantiated, the

learned Judge disposed of the writ petition by holding that if

either of the parties is aggrieved by the order of the Board of

Councilors, it will be open to him to approach the competent

Civil Court for declaration of his civil rights in respect of the

property in question.

Being aggrieved, the writ petitioner has come before

us by way of this appeal.

We have heard learned Counsel for the appellant/writ

petitioner and learned Counsel for the

respondent/Municipality. From the affidavit of service filed

in Court today, it appears that the private respondent has

been served but he is not represented.

The primary grievance of the appellant is that the

Board of Councilors could not have taken upon itself the task

to decide the representation/objection of the appellant since

in the earlier round of litigation, a learned Judge of this

Court had directed the Executive Engineer to take a reasoned

decision in the matter after local inspection and after hearing

the parties. We do not see any merit in this contention of the

appellant. Under Section 218 of the West Bengal Municipal

Act, 1993, it is the Board of Councilors which is the

competent authority to decide whether or not a particular

construction is unauthorized. Although the learned Single

Judge in the earlier round of litigation had directed the

Executive Engineer to undertake the exercise, we are of the

view that no illegality or injustice has been caused by the

Board of Councilors deciding the objection of the appellant.

The appellant further says that he did not receive

notice of local inspection. Learned Advocate for the

Municipality has produced a bunch of documents from its

records which belies such contention. Let the bunch of

documents be kept with the records.

We, therefore, find that the Competent Authority,

after observing the principles of natural justice and after

holding requisite local inspection, has come to the

conclusion that there is no unauthorized construction on the

part of the private respondent. The learned Judge held that

there is nothing wrong or illegal with the order of the Board

of Councilors. We agree with the learned Single Judge. We

are of the opinion that there is no infirmity either in the

order of the Board of Councilors which was impugned before

the learned Single Judge or in the order of the learned Single

Judge which is assailed before us in this appeal.

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 fail and are,

accordingly, dismissed. There will be no order as to costs.

Urgent photostat certified copy of this order be

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

(Arijit Banerjee, J.)

(Apurba Sinha Ray, J.)