Debasish Guha vs Debatosh Guha & Ors
2023 Latest Caselaw 6521 Cal

26.09.2023
Item No.02
Court No.6.
    S. De
                               M.A.T. 1647 of 2023
                                        with
                               I.A. No. CAN/1/2023

                                Debasish Guha.
                                      Vs
                              Debatosh Guha & Ors.


                    Mr. Sudhir Bhattacharyya,
                                          ...for the appellant.

                    Mr. M. Ahmed,     ...for the respondent no.1.

Mr. N.C. Bihari, Mr. P.B. Bihari, Mr. S. Ghosh, Mr. Soumya Mukherjee, ...for the South Dum Dum Municipality.

By consent of the parties the appeal and the

connected application are taken up together for

hearing.

This appeal is directed against a judgment and

order dated August 17, 2023, whereby the writ petition

of the respondent no.1 herein being WPA 20681 of

2018, was disposed of by a learned Single Judge of

this Court.

It appears that in an earlier round of litigation,

the present respondent no.1/writ petitioner had

approached a learned Single Judge of this Court by

filing W.P. No. 5523(W) of 2017, complaining that

South Dum Dum Municipality is not taking steps on

the basis of the representation filed by the writ

petitioner being aggrieved by unauthorized

construction made by the private respondent. The

writ petitioner and the private respondent are brothers

and live on separate floors of the same building.

The earlier writ petition was disposed of by the

learned Single Judge by a judgment and order dated

November 17, 2017 with the following direction :

"After hearing the learned

Advocates appearing on behalf of

the parties, I direct the

respondent-Municipality to dispose

of the above representation of the

petitioner (Annexure P-4 at page-

23 of this writ application) by

passing a reasoned order in

accordance with law after giving

an opportunity of hearing to the

petitioner and the respondent No.4

or their respective representatives

as also other persons concerned, if

any, within a period of three

weeks from the date of

communication of this order. The

respondent-Municipality is further

directed to communicate its

decision to all the persons

concerned within one week

thereafter.

It is made clear that in the

event steps are required to be

taken on the basis of such order,

the respondent-Municipality shall

take such steps without further

delay."

Pursuant to such order, the Board of Councillors

of South Dum Dum Municipality issued notices to the

parties, allowed the parties to file relevant documents

and held hearings. Thereafter, the Board of

Councillors passed an order dated May 31, 2018 in

compliance of the order passed in the earlier writ

petition. The operative portion of the order passed by

the Board of Councillors reads as follows :

"On 31.05.2018 both the parties

were called for hearing before the

Board of Councillors, vide memo

no.40/PWD/XVI/SDM dated

24.05.2018. Today both the parties

were present and after having their

signature on the attendance sheet. The

respondent, Sri Debasish Guha submits

that petitioner Sri Debatosh Guha,

herein represent as his brother. That

temporary construction over the 2nd

floor roof of the building has been

constructed for their aged father to

have sun-bath for taking care of health.

Considering the representation

dated 09.02.2017 of the petitioner, Sri

Debatosh Guha, and the inspection

report of this office, the Board of

Councillors unanimously decided that

as the construction was not made with

brick and R.C.C. structure, that's why it

can not be treated as permanent

structure which does not attract the

question of unauthorised construction."

In the present round of litigation, the respondent

no.1 in this appeal approached the learned Single

Judge challenging the order of the Board of

Councillors referred to above.

The learned Judge in the impugned order

observed that the Chairman of the Municipality has

not assigned valid reasons as to why the temporary

structure in question should be allowed to be retained.

As regards the point of maintainability of the writ

petition raised by the Municipality on the ground of

availability of a statutory appeal under Section 218(3)

of the West Bengal Municipal Act, 1993, the learned

Judge negated such point by holding that the order

impugned in the writ petition does not stem from a

proceeding under Section 218 but has been passed in

terms of the order of the learned Single Judge passed

in the earlier writ petition. Ultimately, the learned

Judge set aside the order dated May 31, 2018 passed

by the Board of Councillors and directed the

Municipality to remove the structure in question

within six weeks from the date of communication of

the order.

Being aggrieved, the private respondent in the

writ petition has come up by way of this appeal.

We have heard learned counsel for the parties.

We agree with the learned Single Judge to the extent

that the order of the Board of Councillors of the

Municipality is not a reasoned order in the sense that

the relevant provisions of the statute i.e. the West

Bengal Municipal Act, 1993, have not been discussed

at all. Section 2(3) of the 1993 Act defines a

"Building". Therefore, any structure which comes

within the scope of that definition can be raised only

upon obtaining prior permission from the

Municipality. Let the Board of Councillors of the

Municipality re-visit the issue and take a fresh

reasoned decision, in accordance with law on the point

as to whether or not unauthorized construction has

been made by the appellant herein as alleged by the

respondent no.1/writ petitioner. The Board of

Councillors shall afford sufficient opportunity of

hearing to the appellant and the writ petitioner herein

and shall consider such documents as the parties may

present before the Board of Councillors. Let this

exercise be completed within 12 weeks from the date of

communication of this order by the parties to the

Chairman of the Board of Councillors.

We clarify that we have not gone into the merits

of the dispute between the parties. The Board of

Councillors will take an informed decision in

accordance with law which will necessarily include

Section 218 of the West Bengal Municipal Act, 1993,

without being influenced by any observation in this

order or in the order of the learned Single Judge which

is impugned in this appeal.

Needless to say that if the Municipality finds

that the structure in question comes within the

definition of "Building" as defined by Section 2(3) of

the 1993 Act, and if the structure has been raised

without obtaining due sanction from the Municipality,

appropriate steps shall be taken by the Municipality in

accordance with law.

The order under appeal is set aside.

Since we have not called for affidavits, the

allegations contained in the stay application are

deemed not to be admitted by the respondents.

MAT 1647 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.)