Calcutta High Court (Appellete Side)
Ajit Naskar vs The State Of West Bengal And Ors on 24 December, 2024
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
APPELLATE SIDE
Present :-
The Hon'ble Justice PARTHA SARATHI SEN
WPA 8486 of 2018
Ajit Naskar..
-Vs-
The State of West Bengal and Ors.
For the Petitioner: Mr.Sk. Abu Abdas Uddin, Adv.,
Mr. Nahid Rahman, Adv.,
Mr. Amit Ganguly,Adv.
For the State: Mr.Tapas Kumar Adhikari, Adv.,
Mr. Somraj Dhar, Adv.
For the Howrah Zila Parisad: Ms. Mekhla Sinha, Adv.,
Ms. Malabika Roy Dey, Adv.
For private respondent: Mr.Nilanjan Bhattacharjee, Sr. Adv.,
Mr. Abhilash Chatterjee, Adv.
For Haldia Municipality: Mr. S.M Hassan, Adv.,
Ms. Anupama Yasin, Adv.
Hearing concluded on: 20.12.2024.
Judgment on: 24.12.2024.
PARTHA SARATHI SEN, J. : -
1. By filing the instant writ petition the writ petitioner has prayed for issuance of appropriate writ upon the respondent nos. 4 and 5 i.e. Howrah Zila Parisad and its functionary commanding them to take immediate steps for demolition of the alleged unauthorized construction of the building as raised by private respondent nos. 9 to 16 in Mouza Jagadishpur, P.S Liluah, J.L no.02, Old Plot no. 588 corresponding to L.R 2 Plot no.621, by Nature Bastu, measuring of an area 20 Sattak, and Old Plot no. 589 corresponding to LR Plot No.622, by Nature Danga, measuring of an area 39 Sattak, Police Station Liluah, District-Howrah at the cost of private respondents.
2. For effective adjudication of the instant lis some admitted facts are required to be looked into and those are narrated hereinbelow in seriatim:-
i. On 12.08.2016 the writ petitioner made a representation in writing with the respondent no.5/authority stating inter alia, that the private respondents were raising an illegal construction over the plot nos. 521 and 522 without giving any adherence to the objection as raised by the writ petitioner though the writ petitioner is a co-sharer of plot no.522. ii. Pursuant to such representation the respondent no.5/ authority under cover its memo dated 04.11.2016 directed the private respondents to stop all further construction over the said plots of land with a further direction to show cause within 7 days from the date of issuance of the said memo as to why the said alleged unauthorized construction would not be removed or dismantled at the cost of the private respondents.
iii. For some reason or other, no order has been passed by the respondent no.5/authority for demolition of the alleged illegal construction and thus the present writ petitioner approached 3 this Court by filing WP 27713 (W) of 2016 which was disposed of on 10.04.2017 by a Co-ordinate Bench of this Court directing the respondent no.5 herein to take appropriate decision pursuant to its show-cause notice dated 04.11.2016 after giving an opportunity of hearing to all the stake holders.
iv. On 08.06.2017 the respondent no.5/authority passed a reasoned order directing the private respondents to demolish the construction at their own cost.
v. The private respondents felt aggrieved and thus filed WP no.1666(W) of 2017 which was disposed of by a Co-ordinate Bench by its order dated 05.07.2017 without interfering with the said order of demolition dated 08.06.2017.
vi. The said order dated 05.07.2017 was challenged by the private respondents herein by filing an appeal being MAT 7320 of 2017 which was disposed of by an order dated 23.10.2017. The relevant portion of the order dated 23.10.2017 as passed by the Division Bench is quoted hereinbelow in verbatim:-
"We are of the view, that it is a point of law. It can be taken at any stage, although the foundation of it should have been laid at the initial stage. In case the lawyer for the appellants has been negligent in not taking the point the litigating appellants should not suffer.4
In those circumstances, we feel that the appellants should be given a chance to urge this point before the District Engineer, Howrah Zilla Parishad, subject to the following observations: -
(a) The appellants cannot deny that the impugned construction is without sanction.
(b) If it is found by the said authority that the petitioners had no right whatsoever to make any construction on the property even if he had a sanctioned plan in his possession, then the question of regularisation of sanction under Regulation 15 would not arise at all. For example, if it is found that the petitioners have no title to the property or that the property is undivided and the other co-owners have not accorded consent to such construction or no construction can be made in the subject area for commercial purposes and so on.
(c) If the appellants overcome this hurdle then their case under Regulation 15 will be actively considered by the District Engineer.
This appeal is formally admitted.
The impugned judgment and order dated 5th July, 2017 is set aside.
The whole matter is remanded to the District Howrah Zilla Parishad to consider it afresh by passing a reasoned order in the light of our above observations, in accordance with law by giving an opportunity of hearing to the parties and allowing them an opportunity to produce evidence. The reasoned order should be communicated to the parties within 6 weeks from the date of service of the order on the Parishad.
By consent of the parties, the appeal (MAT 1278 of 2017) along with the connected stay application (CAN 7320 of 2017) 5 and the writ application (W.P. 16266 (W) of 2017) are, accordingly, disposed of."
vii. Pursuant to the order of the Division Bench the respondent no.5 by its memo dated 30.11.2017 granted liberty to the private respondents to submit 'as made building plan' under Rule 15 of the Howrah Zila Parisad Bylaws within 45 days.
viii. On 22.04.2024 a report was submitted by the respondent no.5. Another report dated 27.03.2018 of one Debasish Sardar, SAE, Howrah Zila Parisad was also submitted stating inter alia, that the respondent no.5 could not consider the application of the private respondents for want of proper documents and for non-compliance of requisite formalities as well as for not filing conversion certificate of the plot nos.621 and 622.
ix. By an order dated 25.07.2023 as passed in this writ petition a Co-ordinate Bench of this Court directed the respondent no.5 to take steps for demolition of the unauthorized construction as made by the private respondents with the help of the police of Liluah P.S. x. However such order was set aside by another Division Bench by its order dated 07.08.2023 as passed in MAT 141459 of 2023 and remanded the matter for hearing afresh which has been taken by this Court.
3. In course of hearing Mr. Abdas Uddin, learned advocate for the writ petitioner submits before this Court that from Annexure R2 of the affidavit-in-opposition as filed by the private the respondent nos. 5 to 16 it 6 would reveal that all on a sudden the respondent no.7 i.e. Pradhan of Jagadishpur Gram Panchayat issued a sanction plan dated 10.03.2023 of existing single storied commercial building in the name of the private respondent nos. 9, 10 and 11 and soon thereafter on 29.03.2023 the said Pradhan also issued a sanction plan for an existing one storied G+1 residential building over the said suit plots of land in the name of respondent nos. 9, 10 and 11.
4. Mr. Abdas Uddin, learned advocate for the writ petitioner submits before this Court that while issuing the aforementioned two sanction plans dated 10.03.2023 and 29.03.2023 respectively neither the respondent no.7 nor the respondent no.5 had given any adherence to the judgement dated 23.10.2017 as passed in 1278 of 2017 by a Division Bench of this Court the relevant portions of which are quoted supra.
5. Mr. Abdas Uddin further submits that the conversion of the plot of land bearing LR pot no.622 as has been done under cover of memo dated 05.04.2023 by the BL&LRO, Bally, Jagacha, Howrah surreptitiously without giving any adherence to the provisions of Sections 4B and 4C of the West Bengal Land Reforms Act, 1955 (hereinafter referred to as the said "Act of 1955" in short) though the writ petitioner is a co-sharer in respect of the LR plot no.622. It is thus submitted by Mr. Abdas Uddin that it is a fit case for allowing the instant writ petition by issuing appropriate writs in terms of the prayer made in the writ petition.
6. Per contra, Mr. Bhattacharya, learned Sr. Advocate also places his reliance to the judgment dated 23.10.2017 as passed in MAT 1278 of 7 2017. It is submitted by Mr. Bhattacharya that the said judgment as passed in MAT 1278 of 2017 was not challenged by the writ petitioner by filing any SLP and therefore the judgment as passed in MAT 1278 of 2017 has reached its finality.
7. In course of his argument Mr. Bhattacharya, learned Sr. Advocate places his reliance upon a notification dated December 24, 1985 as issued by the Calcutta Metropolitan Development Authority as well as upon Howrah Zila Parisad Bylaws, 2005.It is submitted that in terms of the notification dated 24.12.1985 Howrah Zila Parisad was delegated with the power under Sections 48 and 53 read with Sections 52, 54 and125 of the West Bengal Town and Country (Planning and Development) Act, 1979.
8. Drawing attention to Rule 15 of the said Bye laws as well as to annexure R12 (page nos. 65 to 69 of the affidavit-in-opposition of the private respondents) it is submitted by Mr. Bhattacharya that the Gram Panchayat was given permission to issue sanction of a building or structure having plinth area up to 125 sq.m and height up to 6.5 m. It is thus submitted by Mr. Bhattacharya that there is thus no illegality and/or irregularity on the part of the respondent no.7 in issuing the aforesaid two sanctions dated 10.03.2023 and 29.03.2023 (respectively).
9. It is further submitted that from page nos. 71 to 74 of the affidavit- in-opposition of the private respondents it would reveal further that in compliance with the directions as passed in MAT 1278 of 2017 the private respondents submitted their plan with the respondent no.4 i.e. Howrah Zila Parisad who in turn forwarded the same to the respondent no.6 i.e. 8 Jagadishpur Gram Panchayat who by virtue of the Bye Laws is now the competent authority for grant of such sanction and therefore by no stretch of imagination it can be held that the sanction of the building in question of the private respondents were obtained without giving any adherence to the judgement passed in MAT 1278 of 2017 as well to the existing Bye Laws of 2005 and the order dated 30.11.2020 as issued by the Special Secretary, Government of West Bengal, Panchayat and Rural Development (Annexure R 12 of the affidavit-in-opposition of the private respondents).
10. Ms. Sinha, learned advocate appearing on behalf of the respondent nos. 4 and 5 places her reliance upon the report dated 22.04.2024. It is submitted by her that from the said report it would reveal that for non- submission of relevant documents and for non-compliance of the requisite formalities the prayer made by the private respondents pursuant to the judgement in MAT 1278 of 2017 could not be considered by her clients. On being asked by this Court Ms. Sinha on instruction submits further that no opportunity of hearing was given to the writ petitioner by the respondent nos. 4 and 5 for the aforementioned reason as mentioned in the said report dated 22.04.2024.
11. On perusal of the entire materials as placed before this Court and after giving due consideration over the submissions of the learned advocates for the contending parties it appears to this Court that during the pendency of the instant writ petition the respondent no.7 being the Pradhan of Jagadishpur Gram Panchayat granted 'as made sanction plan' 9 dated 10.03.2023 and 29.03.2023 for existing and proposed G+1residential one storied building over LR plot no. 622.
12. Mr. Abdas Uddin, learned advocate for the writ petitioner on instruction also submits before this Court that before granting two such sanctions no opportunity of hearing was given to the writ petitioner though the writ petitioner was a co-owner of the said plot of land and thus the respondent no.7 had deliberately violated the order and judgment dated 23.10.2017 as passed in MAT 1278 of 2017. The respondent no.7 was not represented at the time of hearing though he/she was served with notice. No materials could be placed either by the respondent/authority or by the private respondents that the writ petitioner being a co-sharer of the LR plot no.622 was permitted to raise his objection as mandated in the judgement dated 23.10.2017 as passed in MAT 1278 of 2017. No materials could also be placed before this Court that prior to conversion of the land in respect of the LR plot no.622 the BL&LRO, Bally, Jagacha, Howrah had at all given any opportunity to the writ petitioner of hearing though the writ petitioner being a co-sharer of LR plot no.622 had an interest in such land.
13. Considering the entire scenario as discussed supra this Court thus finds that there was deliberate violation on the part of the respondent no.7 i.e. Pradhan, Jagadishpur Gram Panchayat in complying the judgement and order dated 23.10.2017 as passed by a Division Bench of this Court in MAT 1278 of 2017 while granting the aforementioned two 10 sanctions dated 10.03.2023 and 29.03.2023 in favour of the private respondents.
14. This Court thus finds sufficient merit in the instant petition and accordingly the instant writ petition succeeds.
15. Consequently the order of conversion bearing memo no.7534/BJ/2022 dated 26.08.2022 as issued by the BL&LRO, Bally, Jagacha, Howrah stands hereby quashed and cancelled.
16. Consequently the sanctioned 'as made plan' dated 10.03.2023 as issued by the respondent no.7 in favour of the private respondents also stands hereby cancelled and quashed.
17. Consequently the sanctioned plan dated 29.03.2023 as issued by respondent no.7 in favour of the private respondents for construction of existing G+1 storied building also stands cancelled and quashed.
18. Considering the conduct of the respondent no.7 this Court imposes a cost of Rs.2 lakhs upon respondent no.7 i.e Pradhan, Jagadishpur Gram Panchayat, Howrah which is to be payable by the said Pradhan to the writ petitioner within a month from the date of passing of this order.
19. The respondent no.7, Pradhan, Jagadishpur Gram Panchayat, Howrah is further directed to refer the matter to the jurisdictional SDO along with copy of this order within a month from the date of communication of this order for initiating a proceeding under Section 23(5) of the West Bengal Panchayat Act, 1973.
20. The jurisdictional SDO is directed to conduct appropriate proceeding under Sections 23(5)and (6) of the West Bengal Panchayat Act, 11 1973 within three months from the date of receipt of the reference from the respondent no.7, Pradhan, Jagadishpur Gram Panchayat, Howrah after complying due formalities as enshrined in Sections 23(5) and (6) of the said Act of 1973.
21. The time limit as made by this Court is mandatory and peremptory.
22. The respondent no.7 and jurisdictional SDO are directed to act on the server copy of the order.
23. Ms. Sinha learned advocate for respondent nos. 4 and 5 is requested to communicate the server copy of this order both to the respondent no. 4 as well as to respondent no.7 forthwith.
24. Liberty is given to the writ petitioner to communicate the server copy of this order also to the respondent nos. 4 and 7.
25. Urgent Photostat certified copy of this judgement, if applied for, be given to the parties on completion of usual formalities.
(PARTHA SARATHI SEN, J.) Later After pronouncement of judgement, Mr. Chatterjee, learned advocate on behalf of the private respondent, prays for stay of operation of the judgement as passed today, for a limited period.
Prayer for stay is considered and refused.
(PARTHA SARATHI SEN, J.) 12