Calcutta High Court (Appellete Side)
Kc vs The Serampore Municipality & Ors on 14 May, 2018
Author: Debangsu Basak
Bench: Debangsu Basak
1
45 W.P. No. 30729(W) of 2017
10.05.2018
Sri Subhas Chandra Chaudhuri
KC
Vs.
The Serampore Municipality & Ors.
Mr. Tapan Kumar Majumdar
Mr. Partha Pratim Bhattacharya.
... for the petitioner.
Mr. Goutam Lahiri
Mr. Niladri Saha.
... for the Municipality.
Mr. Kousik Chatterjee
Mr. Nilanjan Adhikary
Ms. Priyanka Mukherjee.
... for the respondent nos. 6 to 8.
Ms. Debjani Mitra.
... for the State.
The petitioner seeks an implementation of an order passed by the Municipality.
Learned advocate for the petitioner submits that, the present writ petition is the third writ petition at the behest of the petitioner and the fourth writ petition on the subject. He draws the attention of the Court to an order dated June 12, 2017 passed by the Municipality, where the Municipality found that there was some encroachment to the land of the petitioner. He draws the attention of the Court to an order dated July 12, 2017 passed in W.P. 16829(W) of 2017 filed by the petitioner, and a reasoned order dated August 18, 2017 by which the Municipality had found that there was construction without 2 obtaining prior sanction, and an order dated October 12, 2017 passed in W.P.25648(W) of 2017 which uphold the order of the Municipality dated September 18, 2017. He submits that, notwithstanding such findings by the Municipality, the Municipality is not taking any steps.
The Municipality is represented.
Learned advocate for the Municipality submits that, subsequent to the reasoned order dated September 18, 2017, hearing has been given to the parties. Moreover, the Municipality has come across the civil suit filed by the private respondent in which the Municipality is a party-defendant. Consequently, the Municipality has stayed its hands.
Learned advocate for the private respondents submits that, there are civil disputes with regard to the title of an immovable property. In the event, the private respondent succeeds in the title suit, the so- called deviations can be regularised. Therefore, it cannot be said that there is any unauthorised construction.
I have considered the rival contentions of the parties and the materials made available on record.
There are few proceedings between the private parties in which the Municipality is also a party. Last of the proceedings had resulted in a reasoned order dated September 18, 2017 passed by the Municipality. The relevant portion of such reasoned order is as follows:
"After enquiry made by our technical staffs it is found, Sri Dilip Kumar Dhar & Ors. Has constructedat his holding 9/A, Thakur Das Babu Lane, Serampore, Hooghly. The following construction which is not 3 according to plan,
i) Four nos. of Chajja at lintel level measuring 1'-
0' in width and in window length
i) Construction of RCC roof over the stair box room, in place of existing asbestos shed.
i) Parapit wall in the roof top.
i) Covering the existing roak by projected roof
slab at the front side of his building.
All the above noted construction has been constructed without taking any prior sanction from this end. Hence, it is a appropriate case to implement Section 218 of West Bengal Municipal Act, 1993.
So you are hereby directed to remove all the constructions immediately and compliance report should be reached in this office within 15 (fifteen) days from the date of receipt of this order."
Such reasoned order was assailed in a writ petition at the behest of the private respondent being W.P. 25648(W) of 17. Such writ petition was disposed of by a judgment and order dated October 17, 2017. The relevant portion of the order dated October 12, 2017 is as follows:
"It is crystal clear from the reasoned order passed by the Chairman, Serampore Municipality that the petitioners have illegally constructed the building and they have not obtained any sanction from the Municipality. The Chairman, Serampore Municipality did not take any action in terms of Section 218 of the West Bengal Municipal Act, 1993. The petitioners have been directed to remove the illegal construction. In that view of the matter, I find there is no illegality in the order passed by the Chairman, Serampore Municipality in requesting the petitioners to remove such illegal construction. The entire writ application appears to be devoid of merit and is 4 accordingly dismissed.
Liberty is being given to the Chairman of the Serampore Municipality to act in terms of the order passed by the learned Single Judge of this Court in W.P. No. 16829(W) of 2017 and in accordance with law."
Therefore, reading the reasoned order dated September 18, 2017 of the Municipality with the order dated October 12, 2017 passed in W.P. 25648(W) of 2017 it appears that, the private respondents have constructed the building illegally and without obtaining any sanction from the Municipality. Such issue is, therefore, res judicata between the parties to this proceeding.
The private respondents have filed a title suit being T.S. No. 30 of 2018 before the learned Civil Judge, Junior Division, Serampore claiming title to an immovable property. The prayers in respect of the plaint of such suit are as follows:
"11. That the plaintiff pray for :
a) A decree of declaration of title of the plaintiff in the "A-1" Schedule property which 1 part and parcel of "A" schedule property mentioned below.
5
a) A decree of permanent injunction restraining
defendant from interfering in the
peaceful possession of the plaintiff in
the "A" schedule property including "A-
1" schedule property mentioned below.
a) A decree of permanent mandatory injunction
for removal illegal and unauthorised
construction of "A-1" schedule
property.
a) Cost of the suit be decreed against the
defendant.
a) Decree of any other relief or reliefs which will
be deem fit proper or law and equity.
Even if the suit is decreed, the same will not alter the position so far as the unauthorised construction is concerned. The construction appearing at the plots of land were without prior sanction.
Therefore, the Municipality is obliged to take appropriate proceedings under Section 218 of the Act of 1995 with regard thereto. The Municipality will do so as expeditiously as possible. It is expected that, the entire proceedings are completed within four weeks from date.
W.P. No. 30729(W) of 2017 is disposed of.
6There shall, however, be no order as to costs.
Urgent certified website copies of this order, if applied for, be made available to the parties upon compliance of the requisite formalities.
(Debangsu Basak, J.)