Arghya Pal & Anr vs The State Of West Bengal & Ors
2023 Latest Caselaw 6356 Cal

21.09.2023
Item No.06
Court No.6.
    S. De
                              M.A.T. 1836 of 2023
                                       With
                              I.A. No. CAN/1/2023

                               Arghya Pal & Anr.
                                       Vs
                         The State of West Bengal & Ors.


                    Mr. S.T. Mina,
                    Ms. Priyanka Das,
                                ...for the appellants/writ petitioners.

                    Mr. Swarup Banerjee,
                    Mr. Vivek Kr. Tripathi,
                    Mr. Partha Pratim Mukhopadhyay,
                    Ms. Muslima Begam,
                                      ...for the respondent no.9.

Mr. R.N. Chakraborty, Mr. M. Ahmed, ...for the Municipality.

Mr. Avijit Sarkar, Ms. Srijoni Mukherjee, ...for the State respondents.

By consent of the parties the appeal and the

connected applications are taken up together for

hearing.

This appeal is directed against a judgment and

order dated August 3, 2023, whereby a learned Single

Judge of this Court disposed of the writ petition of the

appellants herein being WPA 18127 of 2023.

Earlier today, we disposed of another appeal

being MAT 1837 of 2023. In that appeal the present

appellants had challenged and order of a learned

Single Judge granting liberty to the parties to

approach the concerned BL & LRO to measure a

pathway which according to the appellants, is a

private pathway, to find out whether there has been

encroachment on the pathway by the appellants

herein as was alleged by the writ petitioner in the

earlier proceeding who is the respondent no.9 in the

present appeal.

We disposed of that appeal by observing that

since the order impugned in that appeal had been

carried out by the BL & LRO, the appeal had lost its

force.

It appears that pursuant to such measurement,

the Maheshtala Municipality issued an order dated

July 13, 2023, directing the appellants herein to

vacate a two feet wide land as demarcated by the

concerned BL & LRO by removing the boundary wall

put up by the present appellants, to restore the

original width of the passage in question. The order of

the Municipality called upon the present appellants to

take steps for demolishing the unauthorized

construction, failing which the Municipality would

demolish the same and realise the cost from the

appellants herein.

Challenging such order of the Municipality, the

appellants approached the learned Single Judge by

filing WPA 18127 of 2023 in the present round of

litigation. It was submitted by the writ petitioner that

prior to issuance of the demolition order, no

opportunity of hearing had been afforded to the writ

petitioners by the Municipality. It was admitted by the

writ petitioner that spot inspection was held in their

presence but thereafter that were not given an

opportunity of being heard.

The learned Judge observed that the

Municipality has not been able to demonstrate that

any opportunity of hearing was given to the appellants

prior to issuance of the demolition order. Accordingly,

the learned Judge set aside the demolition order with

the following observations and directions :

"In view of the above, the Court is of the opinion that the order impugned suffers from the vice of non compliance of the principles of natural justice.

The impugned order of demolition is, accordingly, set aside.

The Board of Councillors, Maheshtala Municipality is directed to issue fresh notice affording opportunity of hearing to the petitioners and all other necessary parties at the earliest but positively within a period of eight weeks from the date of communication of this order."

Being aggrieved, the writ petitioners have come

up by way of this appeal.

Learned advocate for the appellants says that

the BL & LRO measured a wrong plot of land. Relying

on such measurement, the Municipality issued the

demolition order. This is wholly wrongful.

Learned advocate for the respondent no.9 herein

submits that the Board of Councillors has fixed a

hearing tomorrow (September 22, 2023), in terms of

the order of the learned Single Judge assailed in this

appeal. He submits that no interference is warranted

with the order of the learned Single Judge.

Having considered the rival contentions of the

parties, we are of the view that the parties should

attend the hearing before the Board of Councillors of

Maheshtala Municipality, which has been fixed

tomorrow (September 22, 2023). The appellants would

be at liberty to urge all points before the Board of

Councillors including the point of measurement of a

wrong plot of land by the BL & LRO. We make it clear

that we have not considered the merits of the case at

all. The Board of Councillors shall take an

independent decision in the matter in accordance with

law, observing the principles of natural justice. If the

Board of Councillors deems it necessary, they would

be at liberty to adopt such measure as they think is

necessary for disposing of the matter.

Learned advocate for the appellants draws our

attention to a representation dated July 11, 2022,

made by the respondent no.9 herein to the

Municipality, complaining that encroachment has

been made on plot no.526. This factor has not been

considered by the Municipality before issuing the

demolition order, says learned counsel for the

appellants. This submission is denied and disputed

by learned advocate for the respondent no.9.

We are not inclined to go into this factual

dispute. The parties will be at liberty to have the same

thrashed out before the appropriate forum. The

Municipality will be at liberty to consider the

representation referred to above. The respondent no.9

will also be at liberty to make such submission as they

may be advised in respect of such representation.

We make it clear that we have not gone into any

of the factual disputes involved in this matter. The

parties will be liberty to have such disputes resolved in

accordance with law before the appropriate forum.

We see no reason to interfere with the order of

the learned Single Judge. With the aforesaid

observations, the appeal being MAT 1836 of 2023 is

disposed of along with the application being I.A. No.

CAN 1 of 2023.

Urgent certified photostat copy of this order, if

applied for, shall be given to the parties as

expeditiously as possible on compliance with all the

necessary formalities.

(Arijit Banerjee, J.)

(Apurba Sinha Ray, J.)