Calcutta High Court (Appellete Side)
Golam Kuddus Mollah vs The West Bengal Department Of on 9 September, 2024
Author: Joymalya Bagchi
Bench: Joymalya Bagchi
Sl. No. 08
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
APPELLATE SIDE
Present:
The Hon'ble Justice Joymalya Bagchi
And
The Hon'ble Justice Gaurang Kanth
M.A.T. 805 of 2024
(CAN 1 of 2024)
Golam Kuddus Mollah
-Vs-
The West Bengal Department of
Panchayats & Rural Development & Ors.
For the Appellant : Mr. Mahendra Prasad Gupta, Adv.,
Mrs. Pampa Dey (Dhabal), Adv.,
Mr. Biswarup Chatterjee, Adv.,
Mr. Aditya Sinha, Adv.
Mr. Sarthak Singha, Adv.
For the State : Mr. Lalit Mohan Mahata, Adv,
Mr. Rudranil De, Adv.
For the Zilla Parishad : Mr. Sandipan Banerjee, Adv.,
Mr. Arijeet Bhattacharjee, Adv.
Heard on : 02.09.2024 & 09.09.2024
Judgment on : 09.09.2024
Joymalya Bagchi, J. :-
1. Appellant/writ petitioner had approached this Court, inter alia,
alleging that an unauthorized construction was made over plot
No.1409 pertaining to Sabek Khatian No.102 of Mouza Kendra
2
Dangal and prayed for demolition of the said construction. It is
pleaded in the writ petition appellant and his two brothers are
owners of 0.8 satak land in the said plot. It is argued the State had
passed orders of vesting under the West Bengal Land Reforms Act
as amended by the Amending Acts of 1981 and 1986. The said
provisions in the amending acts had been declared ultra vires by
this Court and matter is pending consideration before the Hon'ble
Supreme Court. Orders have been passed by the Hon'ble Apex
Court restraining the State from creating any third party interest on
the land.
2. In this backdrop, it is contended the construction on the land
amounts to illegal encroachment and no sanction plan had been
obtained as per Section 23 of the West Bengal Panchayat Act.
3. The respondent-Zilla Parishad contested the proceeding and
contended that the construction in question was a part of a project
under National Heath Mission (for short NHM) wherein seven (7) Su
Swasthya Kendra (Health and Wellness Centre) were proposed to be
set up in the district of Birbhum. The construction being
undertaken at the behest of the State of West Bengal, no sanction
from the Panchayat was necessary.
4. Having considered the materials on record the Hon'ble Judge was of
the view issue pertaining to encroachment on the land may be
agitated before the appropriate forum and dismissed the writ
petition.
5. Mr. Gupta for appellant submits the Hon'ble Judge failed to
consider that respondent authorities including the State had no
right to erect the Health Centre on his land. He also submits plan
was not sanctioned by the Panchayat and, therefore, the
construction is unauthorized.
6. In reply, Mr. Mahatao for State submits this Court had not struck
down the 1981 and 1986 amendments to the West Bengal Land
Reforms Act at hand as a whole. Some provisions had been struck
down which are not germane to the case as the State was in
possession of the vested land. Challenging the vesting, appellant
had approached the Land Tribunal but no order of injunction had
been passed in his favour. With regard to the construction, he
contends that Su Swasthya Kendra (Health and Wellness Centre)
was set up under the NHM project at the behest of the Government.
7. Mr. Banerjee for Zilla Parishad has placed records pertaining to the
setting up of Su Swasthya Kendra in question. The records have
been inspected by the parties as well as the Court. From the
records, it appears the construction was made after the State
granted administrative and financial sanction under the NHM RoP
2023-24. At the time of grant of administrative and financial
sanction, the State approved the proposed building plan prepared
and certified by the Engineers of NHM, Family and Health Welfare
Department, Government of West Bengal.
8. We have considered the aforesaid materials on record in light of the
submissions made on behalf of the parties. With regard to creation
of third party interest of the land, we note appellant had challenged
the order of vesting before the Land Tribunal but no order of
injunction had been passed in his favour.
9. Under such circumstances, public project undertaken by the State
to build a Health and Wellness Centre on the said land cannot be
construed as creation of third party interest therein.
10. With regard to the validity of the construction, we note the project
was sanctioned by the Government of West Bengal under the NHM.
The building plan was prepared and certified by the Engineers of
the NHM, Government of West Bengal. Zilla Parishad concerned
was approved by the State when the administrative and financial
sanction was granted. These materials clearly belie the case of the
appellant that Zilla Parishad had made the construction on its own
without following the requirements under Section 23 of the West
Bengal Panchayat Act.
11. It may not be out of place to note the 4th proviso to Section 23 (2) of
the West Bengal Panchayat Act, inter alia, vests power in the State
Government to exempt any structure or building or class or
structure of the building from operation of sub section (1) of the
said Section which requires sanction by the Panchayat concerned
for erection of a building. In the present case, Health and Wellness
Centre was set up under the NHM project with financial and
administrative sanction of State Government. At the time of grant of
financial and administrative sanction, the State Government
approved the plan prepared and certified by the Engineers of Health
and Family Welfare Department. The sanction of the State
Government did not specify it was subject to further sanction from
the Panchayat for construction of the building.
12. In such view of the matter, it cannot be said the construction is an
unauthorized one.
13. Accordingly, we find no merit in the appeal and the same is
dismissed. The records of the Zilla Parishad are returned.
14. Consequently, connected application is also dismissed.
15. There shall be no order as to costs.
16. Photostat certified copy of this judgment, if applied for, be given to
the parties on compliance of all formalities.
I agree.
(Gaurang Kanth, J.) (Joymalya Bagchi, J.)
as
