Calcutta High Court (Appellete Side)
Sri Dilip Polley And Others vs State Of West Bengal And Others on 4 April, 2017
Author: R. K. Bag
Bench: R. K. Bag
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Sl.6.
Bpg.
04.04.2017 W.P. No.23161 (W) of 2016
Sri Dilip Polley and others
Versus
State of West Bengal and others.
Mr. Kishore Mukherjee,
Mr. Sankha Subhra Ray.
...for the petitioners.
Ms. Monjuli Chaudhuri,
Ms. Mekhla Sinha.
...for the respondent nos.2, 3 and 4.
Ms. Reshmi Ghosh.
...for the respondent nos. 5 and 6.
Mr. Naba Kumar Das.
...for the State.
The petitioners have filed this application under Article 226 of the Constitution of India praying for direction upon the respondents to demolish the permanent structure constructed by the private respondent nos.5, 6 and 7 on the public drain (Nayanjali) with the permission of the Howrah Zilla Parishad.
The petitioners claim to be the owners of the land appertaining to R.S. Plot no.1167, Khatian no.984, Mouza - Ranihati, which is situated on the adjacent of the public road, namely, Bauria-Domjurh Road. There is one public drain (Nayanjali) situated in between the public road and the land of the petitioners and the said public 2 drain is used as waterways. It is alleged that Howrah Zilla Parishad, respondent no.2 granted lease of the said public drain (Nayanjali) in favour of the private respondent nos.5, 6 and 7 for the purpose of construction of shop room on the said land and licence was also granted in favour of the said private respondents for running the shop. The petitioners challenged the action of Howrah Zilla Parishad, respondent no.2 in granting licence to the private respondents for running the shop on the public drain (Nayanjali) by filing a writ petition W.P.19321(W) of 2004. It is alleged that the private respondents have made illegal permanent structure on the public road (Nayanjali) and thereby obstructed the waterways and ingress and egress of the petitioners from the main road to their land.
The petitioners also filed one writ petition being W.P.18117(W) of 2013 before this Court seeking issuance a mandatory order upon the Sabhadhipati of Howrah Zilla Parishad to demolish the construction situated on the public drain (Nayanjali) on June 27, 2014. The said writ petition was disposed of by learned single Judge of this Court by making observation that the private respondents have stopped making any construction on the public 3 drain (Nayanjali) and the private respondents were given an opportunity to approach the Howrah Zilla Parishad for the purpose of seeking renewal of lease in accordance with law. The said order of learned single Judge was challenged before the Hon'ble Division Bench by preferring M.A.T. no.1431 of 2014. On September 19, 2014 the Hon'ble Division Bench disposed of the said writ appeal and connected application by making observation that the present petitioners were successful in obtaining the order of stoppage of any kind of construction on the public drain (Nayanjali). The further observation made by the Hon'ble Division Bench in the said writ appeal is that the construction made by the private respondents so far on the public drain (Nayanjali) was asked to be demolished. Accordingly, the Hon'ble Division Bench disposed of the writ appeal under the impression that the construction of the structure on the public drain (Nayanjali) was stopped and the construction which was already made by the private respondents had been demolished.
With the above factual matrix, this Court appointed Sri Surajit Roy, learned advocate, as Special Officer for making an inspection of the structure situated 4 on the public drain (Nayanjali) in presence of all the concerned parties. Sri Roy has submitted the report before this Court and the same is kept on record. It appears from the said report that the structure consisted of two rooms situated on the public drain (Nayanjali) is made of brick and cement with plaster on the wall and on the floor, but the roof of the structure is made of corrugated tin shed. Learned counsel representing the respondent nos.2, 3 and 4 submits that the structure made of brick wall and cemented floor cannot be construed as permanent structure as the roof is thatched with corrugated tin shed. Learned counsel representing the private respondents submits that the private respondents have constructed the structure after obtaining permission from the Howrah Zilla Parishad and the licence of the private respondents to run the shop in the said structure is renewed by Howrah Zilla Parishad. Learned counsel has further submitted that other structures situated on the public drain (Nayanjali) in the vicinity of the disputed structure are also made of brick wall, concrete floor and thatched with corrugated tin shed. Learned counsel for the petitioners submits that the dwelling house of the petitioners is situated behind 5 the permanent structure constructed by the private respondents on the public drain (Nayanjali) and thereby the petitioners are facing inconvenience in using the main public road. He further submits that the permanent structure was not demolished by the private respondents or by Howrah Zilla Parishad in spite of specific direction in this regard by this Court in connection with the previous writ petitions and writ appeal filed by the petitioners.
Having heard learned counsel representing all the parties and on consideration of the report submitted by the Special Officer, I find that the private respondents have constructed the structure made of brick walls plastered with cement and the floor is also made of cement, though the structure is thatched with corrugated tin shed. In my view, this stricture must be construed as permanent structure and not temporary structure as contended on behalf of the respondent nos.2, 3 and 4. Since the permanent structure has been constructed on the public drain (Nayanjali) in violation of the order passed by the Hon'ble Division Bench on September 19, 2014 in connection with M.A.T. no.1431 of 2014 along with CAN 8297 of 2014 and since the said structure was 6 not demolished in compliance with the said order of the Hon'ble Division Bench, I am of the view that the said structure must be demolished by Howrah Zilla Parishad, respondent no.2. By following the observation made by the Hon'ble Division Bench on September 19, 2014 in connection with M.A.T. no.1431 of 2014 the respondent no.2, Howrah Zilla Parishad can grant permission to the private respondent nos. 5, 6 and 7 to put up temporary structure on the public drain (Nayanjali) for running the shop for which licence has already been granted to the said private respondents.
In view of my above findings, the respondent no.2, Howrah Zilla Parishad is directed to demolish the permanent structure constructed by the private respondent nos.5, 6 and 7 on the pubic drain (Nayanjali) for the purpose of running the business within a period of eight weeks from the date of communication of the order. The private respondent nos.5, 6 and 7 are at liberty to put up temporary structure on the said public drain (Nayanjali) after demolition of the permanent structure situated thereon for the purpose of running the shop for which licence is granted to them by Howrah Zilla Parishad.
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With he above direction, the writ application is disposed of.
There will be no order as to costs.
Urgent photostat certified copies of this order, if applied for, be given to the learned counsel for the parties, by giving priority upon compliance of all necessary formalities.
( R. K. Bag, J. )