Calcutta High Court (Appellete Side)
Smt. Sonali Kumar vs The State Of West Bengal And Others on 13 June, 2018
1
13.06.2018.
Item No. CL-992
(W)
W.P. 35543 of 2013
Smt. Sonali Kumar
Vs.
The State of West Bengal and others.
Mr. Sandip Ghosh,
Mr. Subrata Das.
... for the petitioner.
The present writ petition is filed by the petitioner challenging
a show-cause notice dated 20th November 2013 issued by the
Assistant Engineer, Howrah Zilla Parishad for demolition of
unauthorized portion allegedly constructed at her plot of land.
Simultaneously, a relief is also claimed in the instant writ petition
for mandatory direction upon the Howrah Zilla Parishad to
implement the decision/order of the Zilla Parishad against the
respondent no. 6 for demolition of unauthorized structure.
The case made out by the petitioner runs that she purchased a plot of land, whereas the adjoining plot was also purchased by her husband and thereafter a joint application was made before the Zilla Parishad to amalgamate both the plots of land.
According to the petitioner, by virtue of an order of amalgamation both the plots were amalgamated and the husband of the petitioner applied for sanction of building plan over the said amalgamated plots. The petitioner states that the house was constructed in terms of the sanctioned plan and she was discharging her obligation by payment of land revenue as well.
Subsequently, a complaint was made with the Zilla Parishad against the respondent no. 6 on alleged construction of a 2 house/structure at her plot of land, which is adjacent to the amalgamated plots. Since no action was taken by the Zilla Parishad, the petitioner approached this Court by filing a writ petition being WP 10111 (W) of 2000. The said writ petition was disposed of on 8th August 2003 directing the Prodhan of the Gram Panchayat to consider the said complaint/representation and if it is found that the construction made by the respondent no. 6 is in violation to the strict compliance to the appropriate provision of the West Bengal Panchayat Act and the Rules framed thereunder, steps should be taken against such defaulting respondent.
Alleging non-compliance of the said order, a contempt application was filed by the petitioner being WPCRC 124 (W) of 2011, which came to be disposed of on 13th June 2011 directing the Prodhan to see that the order is duly implemented. The aforesaid order was passed upon a submission advanced by the Prodhan that she was elected in the year 2008 and, therefore, was not aware with the said order and she showed her willingness and readiness to implement the said order forthwith.
Thereafter, it was a turn of the respondent no. 6, who made a complaint before the Zilla Parishad against the petitioner for alleged illegal and wrongful construction at the amalgamated plots.
This led to another round of litigation at the behest of the petitioner in filing WP 5452 (W) of 2012. The petitioner not only sought a direction upon the Sabhadhipati, Howrah Zila Parishad to implement the order of demolition of structure allegedly constructed by the respondent no. 6 but also that the Zilla Parishad cannot act on the basis of the alleged complaint made by the respondent no. 6, as the same is made with malice and as counter blast. While disposing of the said writ petition on 4th September 2013, this Court not only directed the Prodhan to implement the order of demolition passed against the respondent 3 no. 6 but also directed enquiry to be made in relation to the complaint made against the petitioner and to bring the dispute to an end within a specified time.
It appears that in compliance of the said order, the impugned show-cause notice is issued upon the petitioner as to why an order of demolition be not passed against the petitioner in respect of a portion of structure, which allegedly found to be illegal and wrongful.
The petitioner has challenged the said show-cause notice on two fold grounds. Firstly, there was a similar show cause notice issued earlier and the reply was duly filed by the petitioner but thereafter no steps were taken by the Zilla Parishad and, therefore, the similar and identical show-cause notice is not maintainable. Secondly, it is submitted that the said show-cause notice is vague and cannot be sustained.
It is no longer res integra that the Court should be slow and circumspect in interfering at the stage of a show-cause as the authorities have not applied its mind conclusively. There are exceptions to such fundamental principle and one of such exception is when the show-cause notice is issued by an authority, who lacks inherent power and jurisdiction to do so or the contents of the show-cause is vague, ambiguous and no reasonable man/woman would be able to ascertain the grounds meted against him/her.
This Court does not find that the present case comes within the purview of the aforesaid exception. A show-cause notice is issued in compliance of a direction passed by this Court in an earlier writ petition and it is discernable therefrom that the authorities intended to initiate proceeding against the petitioner for alleged unauthorized construction at the amalgamated plots. The authorities may ultimately decide whether there is any illegal 4 and wrongful construction at the amalgamated plots or not and it would not be proper to make any observations in this regard at this stage.
This Court, therefore, does not find that there is any scope of interference with the impugned show-cause notice and it is open to the authorities to take a decision independently.
However, this Court appreciates the agony and anguish of the petitioner that after issuance of the show-cause notice in the month of November 2013 no steps or further steps have been taken as yet. It is really a matter of great concern that the statutory authority is sitting tight over the matter and nearly 5 and ½ years has expired since then and the matter has not been brought to its logical end.
This Court, therefore, directs the concerned respondent to dispose of the proceeding allegedly initiated on the basis of the impugned show-cause notice within six weeks from the date of communication of this order after affording an opportunity of hearing to the petitioner as well as the private respondent, in accordance with law.
So far as the primary relief claimed in the instant writ petition is concerned, it is really alarming that despite a final order having passed by the Zilla Parishad for demolition of structure allegedly made by the respondent no. 6, no steps have been taken as yet. In fact, this Court directed the concerned respondent twice to implement the order of demolition and it is equally disturbing that in spite of a candid and express submission made before this Court in an earlier writ petition that the Prodhan would implement the said order, yet the implementation is far away from its destination. The statutory authority taking a specific stand before the Court cannot take the Court for a ride and seeks blessings that there was a bona fide mistake and oversight in implementing the 5 same. If the Prodhan, who claimed to have been elected in 2008, openly asserted before the Court that she was not aware of the order passed in the year 2000 and assured the Court that she would implement the said order, it is inconceivable and unbelievable that such Prodhan would show least respect to its positive stand taken before the Court.
This Court is not unmindful that the tenure of the Prodhan is limited and by the passage of time a new incumbent may have come, as this Court is not aware whether same Prodhan has been reelected in absence of any representation from the Zilla Parishad.
This Court, therefore, directs the Sabhadhipati, Howrah Zilla Parishad to implement the order of demolition dated 26th July 2011 within two weeks from date and shall file the compliance report before this Court on the returnable date.
The learned advocate for the petitioner is directed to communicate this order not only to the Sabhadhipati, Howrah Zilla Parishad but also to the learned advocate, who represented them in the instant writ petition at an earlier point of time and shall file affidavit of service on the next date.
Let this matter be listed after two weeks in the supplementary list under the heading "To Be Mention" for compliance report.
ab (Harish Tandon, J.)