Calcutta High Court (Appellete Side)
Usha Rani Daw & Anr vs The State Of West Bengal & Ors on 11 May, 2016
Author: I. P. Mukerji
Bench: I. P. Mukerji
1
11.05.2016
(12)
DC.
W.P. 25078 (W) of 2015
Usha Rani Daw & Anr.
Versus
The State of West Bengal & Ors.
Mr. Loknath Chatterjee
Mr. Anshuman Gupta...for the petitioners
Mr. Kishore Dutta
Mr. Sirsanya Bandhopadhya
Mr. Arka Kr. Nag... for respondent No. 10
Mr. Rajendra Chaturvedi.. for Municipality Ms. Anuradha Sengupta .. for State On 7th August, 2015, the Rishra Municipality issued a notice to the respondent No. 10 alleging that they had been making construction in violation of the Municipal sanction plan No. B-85/2015-16 by not maintaining proper side spaces. This was followed by a letter issued by the Chairman of the Municipality on 2nd September, 2015 asking the Officer-in-Charge of Rishra Police Station to take steps to stop the construction.
This writ seeks orders from this Court to enforce this stop work notice and to order consequential steps in terms of this notice.
Mr. Loknath Chatterjee, learned Advocate for the petitioners submits that construction is going on unabated.
Mr. Kishore Dutta, learned senior Advocate for the respondent No. 10 submits that subsequent to this stop work notice, there has been amalgamation of plots and a new sanctioned plan has been issued by the Municipality. Construction is being made in accordance with this new sanctioned plan. Furthermore, he draw this Court's attention to an order dated 19th June, 2005 passed in a Title Suit (T.S.353/2015) between the parties in the court of learned civil judge (Junior Division) 2nd court, Serampore, Hooghly where inter 2 alia the respondent No. 10 has been restrained from changing the nature and character of the suit property or raising any construction thereon. Mr. Dutta submits that the petitioners are sufficiently protected by this order.
As far as the interim order of the learned civil court is concerned, it is only restricted to, in my opinion, any damage to or encroachment upon, the petitioners' property which is the suit property. The learned court cannot pass any order restraining construction by a neighbour for infringment of the sanctioned plan.
Moreover, even if it is assumed by this Court that the Municipality has sanctioned a new plan for construction and that construction is being carried out in accordance with that plan, the stop work notice dated 7th August, 2015 remains. The request to the police by the Chairman to enforce the stop work has also not been withdrawn according to the available records.
In those circumstances, it is imperative for the Municipality to make an adjudication in respect of the said stop work notice dated 7th August, 2015 in the presence of the parties herein and by a reasoned order within two months of communication of this order.
I make an order accordingly.
Now the question of restraining the construction work. For the solitary reason that this writ application was filed in September, 2015 and pains have been taken to move it only eight months after filing there of, I think there is no grave necessity of passing the drastic order stopping construction.
However, I pass an order of injunction restraining the respondent No. 10 not to make any construction pending disposal of the case before the Municipality which would increase the vertical or lateral dimension of the building. Other construction work may continue but this construction will be subject to the orders passed by the Municipality.
If there is any other violation by the respondent No. 10, the petitioners may approach the appropriate authority which shall take a decision in the matter.
All the papers are before this Court. Affidavits were not invited. The allegations contained in the writ petition are deemed not to have been admitted.
The writ application is thus disposed of.
3Urgent certified photocopy of this order, if applied for, be supplied to the parties on priority basis.
( I. P. Mukerji, J.)