Calcutta High Court (Appellete Side)
Provaranjan Chowdhury vs The State Of West Bengal & Ors on 6 March, 2019
Author: Biswanath Somadder
Bench: Biswanath Somadder
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
APPELLATE SIDE
Present:
The Hon'ble Acting Chief Justice Biswanath Somadder
And
The Hon'ble Justice Arindam Mukherjee
CAN 4992 of 2018
in
MAT 690 of 2018
Provaranjan Chowdhury
Vs.
The State of West Bengal & Ors.
For the appellant/applicant: Mr. P.S. Bhattacharyya, Sr. Advocate
Mr. Pritam Choudhury
Mr. Abhisek Addhya
For the State: Mr. Biswabrata Basu Mallick
Mr. Debabrata Mondal (2)
For the respondent nos.2 to 4: Mr. Ayanabha Raha
For the respondent no.7: Mr. Syed E. Huda
Mr. Md. R. Alam
Heard on: 14.11.2018 & 06.03.2018.
Judgment on: 6th March, 2019.
Biswanath Somadder, ACJ.
By consent of the parties, the appeal is treated as on day's list and taken up for consideration along with the application for appropriate order. 2
The instant appeal arises out of a judgment and order dated 29th June, 2018, whereby the learned Single Judge proceeded to dispose of two writ petitions, being WP 5849 (W) of 2018 (Provaranjan Chowdhury vs. The State of West Bengal & Ors.) and WP 7110 (W) of 2018 (Sk. Dil Shad vs. The State of West Bengal & Ors.), by quashing the order of demolition issued by Basirhat Municipality on 23rd September, 2016.
This appeal has been preferred by one of the two writ petitioners, namely, Provaranjan Chowdhury, being the writ petitioner in WP 5849 (W) of 2018.
For convenience, the impugned judgment and order is set out hereinbelow in its entirety:-
"Two writ petitions are taken up for consideration analogously as they relate to the demolition of a waste water pipe of a particular building.
For the sake of convenience, W.P. 5849 (W) of 2018 is referred to as the first writ petition and W.P. 7110 (W) of 2018 is referred to as the second writ petition.
Learned Advocate for the first writ petitioner submits that, the municipality is of the view that, the waste water pipe has to be removed. He draws the attention of the Court to a photograph, which shows that, the waste water pipe line of the second writ petitioner is on the property belonging to the first writ petitioner. He also submits that, the civil suit was dismissed with liberty to file a fresh proceeding before the appropriate forum. Consequently, the first writ petition is maintainable and the writ petitioner herein is entitled to the relief as prayed for.
Learned Advocate for the second writ petitioner submits that, the title is in dispute. Initially, the B.L. & L.R.O. had submitted a report in a proceeding under Section 144 of the Cr.P.C. initiated by the first writ petitioner. In such proceeding, the B.L. & L.R.O. had expressed the view that, it is the first writ petitioner, who has encroached upon the land 3 belonging to the second writ petitioner. Subsequently, the first writ petitioner had filed a suit, which he had withdrawn.
The municipality and the State are represented.
In view of the rival contentions, there is an element of disputed title involved, which should not be entered into by a Writ Court. Till the title of the private parties with regard to their respective plots are decided by a competent authority, it would be inappropriate to pass mandatory order directing the municipality to demolish the so-called unauthorized construction. It appears that, the municipality has proceeded on the basis that, the second writ petitioner is guilty of encroachment. Such fact is yet to be established by the first writ petitioner before a competent Court.
In such circumstances, the two writ petitions, being W.P. 5849 (W) of 2018 and W.P. 7119 (W) of 2018 [sic, W.P. 7110 (W) of 2018] are disposed of by quashing the order of demolition issued by the municipality dated September 23, 2016.
No order as to costs."
During the course of hearing of this appeal, this Court had directed the concerned Municipality to file a report in the form of an affidavit which has since been filed. Paragraphs 7 and 8 of the said report are relevant in the facts of the instant case. As such, the same is quoted hereinbelow:-
"7. That after verification of all related papers the Chairman, Basirhat Municipality again informed Sk. Dil Sad vide memo No.1058 dated 23.09.2016 to remove the waste water pipe and other pipes at south side of his building which is under the possession of the Appellant herein i.e. Provaranjan Chowdhury. The photocopy of the letter dated 23.09.2016 is annexed herewith and marked as Annexure "D".
8. That the Chairman, Basirhat Municipality had again sent a reminder letter vide memo No.1287 dated 11.11.2016 to the Sk. Dil Sad asking him to remove the said pipes from the land of the Appellant herein and to install the same in his own land. The photocopy of the letter dated 11.11.2016 is annexed herewith and marked as Annexure "E"." 4 The two paragraphs quoted above reveal that the Chairman of Basirhat Municipality had issued a memo bearing no.1058 dated 23rd September, 2016, informing Sk. Dil Shad, being the writ petitioner in WP 7110 (W) of 2018, to remove the waste water pipe and other pipes at the southern side of his building, which was under the possession of the appellant herein i.e., Provaranjan Chowdhury. Paragraph 8 of the said report reveals further that a reminder was sent by the Chairman, Basirhat Municipality, vide memo no.1287 dated 11th November, 2016 to Sk. Dil Shad asking him to remove the said pipes from the land of the appellant herein and to install the same in his own land.
In the facts of the instant case, admittedly, a civil suit was filed by the appellant herein against Sk. Dil Shad. Basirhat Municipality was a party in the said suit. The said civil suit was dismissed for non-prosecution. As a Court of Appeal entertaining Intra-Court Mandamus Appeals, we do not consider it necessary to enter into the factual controversies in issue between the parties. However, we are of the view that the concerned Municipality ought to have taken steps in the matter consequent upon issuance of the two memos referred earlier. As the Municipality did not proceed any further, apart from issuing the two memos, we are of the view that the matter requires a fresh consideration by the concerned authority, namely, Basirhat Municipality.
As such, we direct the Chairman, Basirhat Municipality, to take a fresh decision in the matter supported with cogent reasons after giving adequate opportunity of hearing to all concerned, including the appellant herein, namely, 5 Provaranjan Chowdhury and Sk. Dil Shad, being the writ petitioner in WP 7110 (W) of 2018, upon taking into consideration their respective building plans. The parties are also at liberty to raise all issues before the Chairman of the Basirhat Municipality and it will be open to Sk. Dil Shad to take exception to the statements made in paragraphs 7 and 8 of the report in the form of an affidavit which was filed before this Court on behalf of Basirhat Municipality.
Such decision shall be taken by the Chairman, Basirhat Municipality preferably within a period of six weeks, but not later than eight weeks from the date of communication of a photostat certified copy of this order. In the event any party is aggrieved by the decision of the Chairman, Basirhat Municipality, that party will be at liberty to approach the competent higher forum in accordance with law.
The impugned judgment and order dated 29th June, 2018, stands modified to the extent as indicated above.
The appeal and the application for appropriate order stand disposed of accordingly.
Urgent photostat certified copy of this judgment, if applied for, be given to the learned advocates for the parties.
(Biswanath Somadder, ACJ.) I agree.
6
(Arindam Mukherjee, J.) pg .