Calcutta High Court
Muktipada Bhandari vs State Of West Bengal And Ors. on 28 February, 2002
Equivalent citations: AIR2002CAL186, (2002)3CALLT324(HC), AIR 2002 CALCUTTA 186, (2002) 2 CAL HN 257, (2002) 3 CALLT 324, (2002) CAL WN 862
Author: Pranab Kumar Chattopadhyay
Bench: Pranab Kumar Chattopadhyay
ORDER Pranab Kumar Chattopadhyay, J.
1. The Petitioner herein has challenged the notice issued by the Prodhan, Purandarpur Gram Panchayat. Birbhum whereby the said Prodhan directed the petitioner to stop the work of construction at the first floor. According to the petitioner, the said Prodhan had issued the aforesaid notice wrongfully, illegally and in violation of the specific provision of the West Bengal Panchayat Act, 1973 and Rules framed thereunder.
2. It has been submitted on behalf of the petitioner that after taking loan from the Bribhum Zilla Parishad, petitioner constructed one storied residential house on the plot in question and since then petitioner has been making regular payment of land and building tax to the Purandarpur Gram Panchayat. The receipts granted by the Purandarpur Gram Panchayat upon accepting the said building tax from the petitioner has been annexed to the Writ Petition.
3. On 15th November, 1999, petitioner submitted an application under Section 23 of the West Bengal Panchayat Act, 1973 before the Prodhan, Purandarpur Gram Panchayat in the prescribed form and manner. The Prodhan of the concerned Gram Panchayat, however, by a written communication dated 6th January, 2000 asked the petitioner to submit first floor plan estimate, conversion certificate of land and also a copy of the sanction order in respect of the construction of ground floor. According to the petitioner, necessary documents as was directed by the Prodhan in the letter dated 6th January, 2000 were deposited on 15th January, 2001.
4. Since no formal permission was granted by the Prodhan of the concerned Gram Panchayat, a reminder was given by the petitioner on 26th February, 2001 requesting the Prodhan to grant necessary permission for construction of the first floor expeditiously.
5. The Prodhan of the concerned Gram Panchayat, however, by another written communication informed the petitioner that in spite of earlier direction the petitioner did not furnish the copy of the conversion certificate in respect of the land in question and the sanction letter in respect of construction of the ground floor. The petitioner, however, submitted a copy of the conversion certificate before the concerned Anchal Prodhan by annexing the same together with the written representation dated 1st March, 2001.
6. In the said representation the petitioner, however, specifically mentioned that the ground floor was constructed after taking necessary loan from the Birbhum Zilla Parishad and the construction of the said ground floor was completed almost 13 years back. The petitioner mentioned in the said representation that the petitioner had been residing in the said ground floor for more than 13 years upon making regular payment of building tax to the Gram Panchayat which the said Gram Panchayat accepted without raising any objection at any point of time. It was also mentioned by the petitioner that the relevant receipts and other documents in this regard are not readily traceable. But mentioning the conduct of the Gram Panchayat and particularly referring to the regular assessment of the building tax in respect of the said building by the Gram Panchayat and payment of the same by the petitioner herein, it was contended that the ground floor was constructed by the petitioner after obtaining due permission from the Panchayat authorities.
7. Ultimately, the Prodhan by a written communication dated 11th April, 2001 directed the petitioner not to carry out any construction work at the first floor. The petitioner challenged the aforesaid notice issued by the Prodhan of the Purandarpur Gram Panchayat in the present Writ Petition.
8. The learned advocate of the respondent Gram Panchayat produced the relevant records before this Court. On scrutiny of the records it appears that the petitioner herein made an application before the Prodhan, Purandarpur Gram Panchayat in the prescribed form and manner as far back as on 15th November, 1999.
9. The petitioner also submitted the proposed building plan along with the said application and also deposited the prescribed fees. Furthermore, the said petitioner also deposited several documents including conversion certificate of the land, first floor estimate and also the tax receipts issued by the concerned Gram Panchayat from time to time after realising the building tax from the petitioner in respect of the said ground floor building over which the petitioner proposed to construct first floor.
10. It was never contended on behalf of the Gram Panchayat that the petitioner constructed the said ground floor building without obtaining any prior consent and or sanction in this regard. Admittedly, no notice was ever issued on behalf of the Gram Panchayat alleging that the ground door construction of the said building is unauthorized or that the petitioner constructed the said ground floor without obtaining any permission. On the other hand, the petitioner specifically asserted that the said ground floor was constructed after obtaining necessary sanction from the authorities and after making necessary payment of the prescribed fees though such receipts issued by the Gram Panchayat in this regard are not readily available with the petitioner.
11. From the records it appears that the authorities of the Purandarpur Gram Panchayat made regular assessment in respect of the building in question and realised building tax regularly from the petitioner herein. Furthermore, no notice was ever served by the authorities of the Gram Panchayat upon the petitioner alleging that the construction of the said ground floor was illegal and/or unauthorized. In any event, in a small village nobody can complete construction of building without attracting the notice of the authorities of the Gram Panchayat.
12. In the instant case, the ground floor of the petitioner was constructed more than 13 years back and the petitioner had been residing in the said ground floor with his family members.
13. From the records I find that the Gram Panchayat authorities assessed and/or levied building tax in respect of the said ground floor building of the petitioner after necessary assessment and also realised the said building tax regularly from the petitioner and at no point of time any notice was served upon the petitioner pointing out any illegality and/or irregularity in the matter of construction of the ground floor in question and therefore it can be safely inferred that the petitioner constructed the said ground floor and occupied the same with the knowledge and consent of the authorities of the Purandarpur Gram Panchayat.
14. It is quite possible that after a lapse of 14 or 15 years the relevant receipts may be misplaced but thereby it cannot be said that the construction of the said ground floor was illegal and/or invalid particularly when no such allegation was ever made by the authorities of the Gram Panchayat.
15. Now, in the present case the petitioner duly submitted an application in the prescribed form and manner with requisite fees before the Prodhan of the Purandarpur Gram Panchayat as far back as on 15th November, 1999. Unfortunately in spite submission of the said application in the prescribed form and manner, the respondent Prodhan of the Gram Panchayat did not take any step till today for making necessary enquiry to ascertain the correctness of the information and/or descriptions mentioned by the petitioner in the application form by engaging a competent Enquiry Officer.
16. The relevant portion of the form which is to be filled up by the Enquiry Officer after making necessary enquiry is still lying blank as the respondent Prodhan did not even process the said application and did not examine the information mentioned in the application form by the petitioner by an Inspector even after a lapse of more than 21/2 years.
17. In the aforesaid circumstances, I am constrained to hold that the respondent Prodhan herein did not act properly and in accordance with law by not taking steps in terms of Rule 23F of the W. B. Panchayat (Gran Panch. Admn.) Rules. 1981.
18. It further appears from the records that though the petitioner applied for permission for construction of first floor of the building as far back as on 15th November, 1999 but the authorities of the Gram Panchayat never made any communication to the petitioner refusing permission for the erection or construction as applied for. Surprisingly the Prodhan of the Purandarpur Gram Panchayat by written communication dated 11th April, 2001 objected to the petitioner's commencement of construction of the first floor of the building without obtaining prior permission from the Gram Panchayat and asked the petitioner to stop the said construction work.
19. In terms of Rule 23-I of W. B. Panchayat (Gram Panch. Admn.) Rules, 1981 if permission or refusal under sub-rule (5) of Rule 23F is not communicated by the Gram Panchayat within the time limit as prescribed, it shall be presumed that the Gram Panchayat has accorded such permission and it shall be lawful for the applicant to erect any structure of building confirming to the building plan and site plan furnished by him with the application without waiting for such permission. The Sub-rule (5) of Rule 23F and Rule 23-I of the said W. B. Panchayat (Gram Panch. Admn.) Rules, 1981 are quoted hereunder :
"23-F.......................................... .....(5) Subject to the provisions of Rule 23G and Rule 23H, communication to the applicant under Sub-rule (2) shall be made by the Gram Panchayat within a period of sixty days from the date of receipt of the application under Sub-rule (1) of Rule 19."
"23-I. Right of applicant if the permission or refusal is not communicated within time-limit.-- If permission or refusal under Sub-rule (5) of Rule 23F, Rule 23G or Rule 23H, as the case may be, is not communicated by the Gram Panchayat within the time limit as prescribed, it shall be presumed that the Gram Panchayat has accorded such permission and it shall be lawful for the applicant to erect any structure of building conforming to the building plan and the site plan furnished by him with the application without waiting for such permission."
20. In the present case after long lapse of the prescribed time limit, the petitioner started construction in respect of the first floor of the said building and the same is permissible and legally valid in view of the aforesaid provision of the W. B. Panchayat (Gram Panch. Admn.) Rules, 1981.
21. Having heard the learned counsel appearing for the respective parties and considering the materials on record, I am satisfied that the authorities of the Purandarpur Gram Panchayat have proceeded against the petitioner in a most high handed manner in order to prevent the petitioner from constructing the first floor of the building in question. Under the aforesaid Rule of 1981 the authorities of the Gram Panchayat should communicate the permission or its refusal to the applicant within the prescribed time limit of 60 days from the date of the receipt of the application for construction. Failure to do so would amount to according the permission. But in the instant case even after a lapse of more than 21/2 years no step has been taken by the authorities of respondent Purandarpur Gram Panchayat to process the application of the petitioner herein.
22. Accordingly by operation of law in terms of Rule 23-I of the W. B. Panchayat (Gram Panch. Admn.) Rules, 1981, petitioner is entitled to erect structure and/or carry on construction work in respect of the first floor of the said building in conformity with the building plan submitted by the petitioner with the prescribed application form without waiting for any formal permission from the said Gram Panchayat in this regard.
23. For the aforementioned reasons, the Writ Petition succeeds and the same is thus allowed. The impugned notice dated 11th April, 2001 issued by the Prodhan, Purandarpur Gram Panchayat therefore stands quashed. The petitioner, however, will carry on construction work at the first floor of the building in question strictly conforming to the building plan, which was submitted by him with the prescribed application form before the Prodhan of the Purandarpur Gram Panchayat.
24. There will be, however, no order as to costs.
25. Let xerox certified copy of this judgment be made available to the respective parties, if applied for, on urgent basis.