Calcutta High Court (Appellete Side)
Kanak Kanti Tarafdar & Another vs The State Of West Bengal & Others on 17 January, 2020
Author: Arijit Banerjee
Bench: Arijit Banerjee
z 1
17.01. W. P. No. 27843 (W) of 2014
2020 With
11
AB Court
C.A.N. 8651 of 2015
&
S.DE
No.1
Kanak Kanti Tarafdar & Another
Vs
The State of West Bengal & Others
Mr. Anindya Lahiri,
Mr. Mainak Ganguly,
Mr. Samrat Dey Paul ...for the Petitioners.
Mr. N. C. Bihani,
Ms. Papiya Banerjee Bihani ...for the State.
Mr. Jaydeep Kar, Sr. Advocate,
Mr. Amales Ray,
Ms. Mousumi Bhowal ...for the Municipality.
The allegation of the petitioners in this Public
Interest Litigation is that the 2nd Respondent
Municipality is making a construction or has completed the construction of a commercial building on a piece of land which is on a public road and drain.
The petitioners contend that public road and drain are to be kept intact and no encroachment on such land is permissible.
Hearing learned Counsel for the petitioners, learned Senior Counsel for the 2nd Respondent Municipality and learned Counsel for the State of West Bengal and the officials of the Government, we see that the issues that would arise for consideration ultimately get classified into two.
The first issue will be as to whether the construction made by the 2nd Respondent Municipality is on a public road and/or drain. The competent authority under the relevant Statute will have to decide on the issue whether the building is one, which is so. z 2 Once that is ascertained, it is submitted that there is an interlocutory order already recorded by this Court whereunder the 2nd Respondent Municipality has undertaken to demolish the building, if found to be unauthorized and in violation of the laws. The second aspect is, with passage of time the 2nd Respondent Municipality is stated to have made an application before the concerned Revenue Authority for reclassification of the land, which originally stood as "rasta and drain." That is an issue, which the Revenue Authority has to consider under the revenue laws. The consideration of the matter by the Revenue Authority on the application by the Municipality for reclassification or declassification of the land in terms of revenue records is, according to the learned Counsel for the petitioners, impermissible because the "rasta or drain" cannot be reclassified or declassified to make it ceased to be a "rasta or drain". That is a point on which the petitioners are entitled to object to any request or application of the 2nd Respondent Municipality before the competent authority before whom such issue would be presented for consideration or may be placed for consideration in terms of the revenue laws. In so far as the alleged encroachment is concerned, the competent authority has to decide as to whether the building constructed by the 2nd Respondent Municipality is on a public road. That has to be considered by the competent authority depending upon the identity of the road and the law, which would apply for preservation and maintenance of that road and z 3 protection of the road and the drain.
In the aforesaid view of the matter, we direct the 3rd Respondent, namely, District Magistrate, Cooch Behar, who is also the administrative head of that District, to ensure that the aforesaid two issues are placed for consideration before the competent authority among the respondents or any other authority, which may be the competent authority to decide those issues.
We direct that the two issues have to be independently decided in accordance with law and a final decision has to be rendered by the competent authority within an outer limit of four months from the date of receipt of a copy of this order with a copy of the writ petition. Out of the said period of four months, the 3rd Respondent, District Magistrate, Cooch Behar will pave the way by identifying the appropriate authority for consideration of the aforesaid issues within a period of three weeks from the date of receipt of a copy of this order with a copy of this writ petition.
We clarify that we have left open all issues to be decided by the appropriate authority and the petitioners and the 2nd Respondent Municipality will be entitled to be heard by such competent authority before final decisions are taken on the aforesaid two issues. After such action is taken and the result of such action is carried forward, the District Magistrate, Cooch Behar will place a report before the Registrar General of this Court on the administrative side within a period of six months from today without fail. The Registrar General will place that report on the administrative side z 4 at the first instance before the Hon'ble Chief Justice for such further action, if any, that may be found necessary from the High Court.
Learned Advocate for the petitioners shall communicate this order to the concerned Officers along with a copy of the writ petition.
With the aforesaid directions, the writ petition being W.P. No.27843 (W) of 2014 as also CAN 8651 of 2015 are disposed of treating the same as on day's list. Urgent Photostat Certified copy of this order, if applied for, be supplied expeditiously after complying with all necessary legal formalities.
(Thottathil B. Radhakrishnan, C.J.) ( Arijit Banerjee, J.)