Calcutta High Court (Appellete Side)
Sitaram Barasia vs The State Of West Bengal & Ors on 23 September, 2024
Author: Joymalya Bagchi
Bench: Joymalya Bagchi
Sl. No. 77
-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
F. M. A. 999 of 2024
(CAN 1 of 2024)
Sitaram Barasia
-Vs-
The State of West Bengal & Ors.
For the Appellant : Mr. Tapash Kumar Bhattacharya, Adv.
Mr. Aviroop Bhattacharya, Adv.
For Respondent no.5 : Mr. Pratik Majumder, Adv.
[Pradhan] Mr. Abdul Mullick, Adv.
For Respondent No.9 : Mr. Parashar Baidya, Adv.
Mr. Santanu Talukdar, Adv.
Mr. Priyankar Ganguly, Adv.
Ms. Shalini Bairagi, Adv.
Heard on : 23.09.2024
Judgment on : 23.09.2024
Joymalya Bagchi, J. :-
1. Appellant had approached this court alleging unauthorised
construction by private respondent no.9.
2. In view of such complaint, Hon'ble Single Judge in WPA 12404 of
2022 disposed of the matter directing the Pradhan, Karimpur-I Gram
Panchayat to consider the grievance of the appellant in the following
manner :-
a) An inspection shall be conducted. Such inspection shall be held in the
presence of the petitioner and the respondent no.12 within three weeks.
Advance notice of the inspection shall be served upon the petitioner and
the respondent no.12.
b) In case, it is found on preliminary inspection that there may be reasons
to believe that the construction was without permission and was
continuing, the authorities may take such interim measures by stopping
such construction.
c) The report of such inspection shall be prepared along with the sketch
map, indicating the extent and nature of unauthorised construction, if
any.
d) Such report shall be handed over to the parties.
e) A hearing shall be given to the petitioner and the respondent no.12. The
parties must also be allowed to furnish their written objection/version to
the said report and adduce oral and documentary evidence in support of
their contentions before the competent authority. All points raised by
either party shall be decided.
f) A reasoned order shall be passed and communicated to the parties. On
the basis of what transpires at the hearing and during inspection, the
proceedings shall be reached to its logical conclusion in terms of the
statute.
3. Pursuant thereto, the Pradhan, Karimpur-I Gram Panchayat
passed order dated 13.02.2023 wherein he noted as follows :-
i) As per deed the area of the premises is 807 sq. ft. but B.L.&L.R.O.
has found the area of the building to be 870 sq. ft.
ii) Panchayat had sanctioned a structure of 574 sq. ft.
iii) The building was constructed without maintaining mandatory side
open spaces.
iv) No permission from Panchayat or Zilla Parishad was obtained to
make the G+2 storied construction.
4. In light of the aforesaid findings, Pradhan directed the private
respondent no.9 to demolish the unauthorised portions of the building.
5. Appellant again approached this court in the instant writ petition
seeking implementation of the order of the Pradhan. During hearing,
Hon'ble Single Judge noted the order was passed without complying with
the directions of this court in WPA 12404 of 2022 and remitted the matter
to the Pradhan to undertake enquiry in terms of the aforesaid order in
WPA 12404 of 2022 and pass a reasoned order with regard to complaint
regarding unauthorised construction. Hon'ble Single Judge further
directed if any unauthorised construction was noted, the same shall be
referred to the Sub-Divisional Officer in terms of Section 23(5) of the West
Bengal Panchayat Act, 1973.
6. Mr. Tapas Kumar Bhattacharya for the appellant contends the
order passed by the Pradhan is self-evident with regard to deviations from
the sanctioned plan. He also contends the said order had not been
assailed.
7. Learned Advocate for the Pradhan, Karimpur-I Gram Panchayat,
however, is unable to place on record report of inspection including
sketch map showing the extent and nature of unauthorised construction.
8. Learned Advocate for private respondent no.9 submits no copy of
the inspection report had been served upon him during hearing.
9. We have considered the materials on record. By order dated
05.09.2022 in WPA 12404 of 2022 Hon'ble Single Judge directed the
Pradhan, Karimpur-I Gram Panchayat to hold inspection and thereupon
prepare an inspection report enclosing sketch map indicating the nature
and extent of unauthorised construction. Report was directed to be
handed over to the parties and after hearing them vis-a-vis objections to
the report, necessary order was required to be passed.
10. Order passed by the Pradhan does not reflect inspection report
with sketch map was prepared and circulated amongst the parties
including private respondent no.9. Consequently private respondent no.9
was in the dark with regard to the contents of the inspection report and
could not effectively make representation when the order directing
demolition of unauthorised construction came to be passed.
11. Under such circumstances, we are of the view order of the
Pradhan, Karimpur-I Gram Panchayat was not only in breach of the
directions of this court in WPA 12404 of 2022 but also in breach of
principles of natural justice and fair procedure.
12. Accordingly, we are of the view Hon'ble Single Judge was justified
to direct fresh inquiry in terms of the order passed by this court in WPA
12404 of 2022 within a time frame. Hon'ble Judge had further directed in
the event unauthorised construction was noted, matter shall be referred
to the Sub-Divisional Officer under Section 23(5) of the West Bengal
Panchayat Act, 1973 which addresses the concern of the appellant. The
impugned order does not call for interference.
13. We direct the Pradhan, Karimpur-I Gram Panchayat to conclude
enquiry in terms of the impugned order within six weeks from the date of
communication of this order. In the event, unauthorised construction is
noted, the said order shall be forwarded to the Sub-Divisional Officer
under Section 23(5) of the West Bengal Panchayat Act, 1973 within one
week thereof for necessary action in accordance with law.
14. With the aforesaid directions, appeal is disposed of.
15. In view of disposal of the appeal, connected application being CAN
1 of 2024 is also disposed of.
16. There shall be no order as to costs.
17. 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.)
akd
