Calcutta High Court (Appellete Side)
Dr. Ranbeer Bose & Anr vs Anita Das & Anr on 19 October, 2023
Author: Arijit Banerjee
Bench: Arijit Banerjee
19.10.2023
Item No.4.
Court No.6.
AB
M.A.T. 2124 of 2023
With
IA CAN 1 of 2023
IA CAN 2 of 2023
Dr. Ranbeer Bose & Anr.
Vs
Anita Das & Anr.
Mr. Anindya Lahiri,
Mr. Arkadipta Sengupta,
Mr. A. Karim,
Ms. A. Mukherjee ....For the Appellants.
Mr. Gangadhar Das,
Mr. Tanmoy Chattopadhyay
.....For the Respondent No.1.
In re : CAN 1 of 2023 This is an application for leave to prefer appeal against an order dated 5.10.2023, passed by a learned Single Judge of this Court in a contempt application, being CPAN 694 of 2022, to which the applicants herein was not a party.
Having considered the nature of the order and submission of learned Advocate for the applicants, we are of the view that the applicants may have something to say regarding the order impugned.
Accordingly, leave to prefer appeal is granted. IA CAN 1 of 2023 stands disposed of.
In re : MAT 2124 of 2023, CAN 2 of 2023 This matter has a chequered history. Briefly stated, the respondent no.1 herein (hereinafter referred to as "Anita") had approached a learned Single Judge of this Court by filing WP No.17690 (W) of 2019 2 with the complaint that her representation to English Bazar Municipality ventilating her grievance regarding the appellant herein (hereinafter referred to as "Ranbeer") having constructed a building next to Anita's building without leaving requisite open space as required under Rule 50 of the West Bengal Municipal (Building) Rules, 2007, was not receiving the attention of the Municipality.
The learned Judge disposed of that writ petition by an order dated September 25, 2019, the relevant portion whereof reads as follows:
"That being the scenario, I direct the Chairman, English Bazar Municipality, the respondent no.2 herein to take a decision in respect of the petitioner's complaint dated 25th September, 2018 as well as 5th August, 2019 within six weeks from the date of communication of this order after giving an opportunity of hearing to the petitioner or his authorised representative and the private respondent no.5 or his authorised representative and thereafter communicate the decision to the parties within one week.
Needless to mention, if it is found in the decision that the private respondent no.5 without keeping the mandatory open space as stipulated the Rule 50 of the West Bengal Municipal(Building) Rules, 2007, then the respondent no.2 is directed to take further steps in accordance with law.
Needless to mention, till the decision is taken the private respondents are restrained from making any construction or further construction at the building in question."
Pursuant to that order, the Chairman of English Bazar Municipality, after hearing both parties, passed an order on October 25, 2019, the relevant portion whereof reads as follows:
"On perusal of the relevant documents attached with the case record respectively, it is found from that the petitioner had purchased a three stored building in the year 2014 which is just adjacent to the northern side of the 3 holding in question of the opposite party but till now the petitioner had never mutated her name as per West Bengal Municipal Act against her purchased land. Moreover the petitioner had file a case before the S.D.E.M. Malda U/s 147 Cr. P.C. over the self same matter against the opposite party in respect of the holding in question and the said case had registered as Case No:211/P/2018. In that case Ld. S.D.E.M. Malda had directed this Municipality to conduct an enquiry over the same and submit a report to that effect and the same had already been complied and the said case is still pending in between the said parties. Considering all those aspects, it is crystal clear that the matter is under sub-judice before the higher authority of this undersign. So, I decide that, the applications of the petitioner should not be proceed further and rejected. Hence the matter is disposed of."
Challenging that order of the Municipality, Anita approached a learned Single Judge of this Court by filing W. P. A.24206 of 2019 praying for quashing of the order of the Municipality as also for a direction on the Municipality to set aside or cancel the sanctioned plan dated April 26, 2018, issued in favour of Ranbeer.
That writ petition was disposed of by a learned Single Judge by a judgment and order dated February 19, 2021, the relevant portion whereof reads as follows:
"Accordingly, the impugned order dated 25 th October, 2019 passed by the Chairman, English Bazar Municipality is set aside. The matter is remanded back to the Chairman of the English Bazar Municipality to take steps strictly in accordance with the direction passed by this Court on 25 th September, 2019 within a period of six weeks from the date of communication of a copy of this order, after giving an opportunity of hearing to the petitioner and the private respondents.
The private respondents are restrained from carrying on any construction or further construction in respect of the building in question till an order is passed by the Chairman of the Municipality, as directed hereinabove."4
Ranbeer has filed an appeal against that order being MAT 2122 of 2023 with an application for condonation of delay. That appeal has not yet been admitted.
Alleging wilful violation of the learned Judge's order dated February 19, 2021, Anita has filed a contempt application being CPAN 694 of 2022 adding the Chairman of English Bazar Municipality as the sole respondent/alleged contemnor.
During the pendency of the contempt application, the Chairman of the Municipality passed an order dated February 15, 2023, holding that there was no irregularity in the construction made by Ranbeer and more than necessary open space has been left by Ranbeer on the side of Anita's property.
Accordingly, the Chairman disposed of the matter. This order is not under challenge before any competent forum.
When this order was placed before the learned Single Judge by way of an affidavit of compliance, Anita sought leave to file exception to such affidavit and subsequently filed such exception, which was taken on record by the learned Judge on September 14, 2023. The learned Judge took exception to the observation of the Chairman in the order dated February 15, 2023 that "there is no need for further measurement as the same has been done and no deviation was found in the constructions". The learned Judge observed in the order dated September 14, 2023 5 that by the order dated February 19, 2021, the Court had categorically directed the Chairman of the Municipality to inspect the property and come to a specific finding whether mandatory open spaces as prescribed under Rule 50 of the West Bengal Municipal (Building) Rules, 2007 have been maintained by the private respondent at the time of making construction. It is not for the Authority to put forward any opinion substituting the mandatory direction passed by the Court. The learned Judge directed personal appearance of the Chairman of the Municipality.
On October 5, 2023, the Chairman appeared before the learned Judge. The learned Judge directed that "the order of the Court shall be complied and fresh affidavit of compliance be filed on the adjourned date". The matter has been directed to be listed again on 30.11.2023.
Being aggrieved by the order dated October 5, 2023, Ranbeer has come up before us by way of this appeal.
Learned Advocate for Ranbeer says that neither the order dated 25.09.2019 passed in the first round of litigation nor the order dated 19.02.2021 passed in the second and present round of litigation directed the Chairman in so many words to inspect the property in question. Hence, the learned Judge proceeded on an incorrect basis. The direction on the Chairman was to consider and dispose of the representation of Anita. 6 That may or may not have required local inspection. However, in fact, local inspection was held by Officers of the Municipality as recorded in the Chairman's order dated February 15, 2023. Learned Advocate says that in view of the aforesaid, there was no warrant for directing the Chairman of the Municipality to reconsider the matter and file fresh affidavit of compliance. This may create unnecessary complications for the appellant. Secondly, it is submitted that the order of the Chairman of the Municipality dated February 15, 2023, disposes of Anita's representation. The order may be right or wrong, in conformity with the directions of Court or not; in any event, that order furnishes Anita with the fresh cause of action. Anita was entitled to challenge that order before the competent forum i.e. before the Civil Judge, Jr. Division under Section 218(3) of the West Bengal Municipal Act, 1993. Anita has not done so. In contempt jurisdiction correctness or otherwise of the Chairman's order dated 15.02.2023 could not be decided. Learned Advocate relies on the decision of a Coordinate Bench of this Court in the case of Avanindra Singh Vs Krishnendu Ghoshal reported in 2019 SCC Online Cal 2015 wherein in paragraph 19 of the reported decision, the Bench referred to a judgment of the Hon'ble Supreme Court in the case of J. S. Parihar, reported at (1996)6 SCC 291. In that case, the Hon'ble Supreme Court observed that once an order is passed by the Government on the basis of 7 the directions issued by the Court, there arises a fresh cause of action to seek redressal in an appropriate forum and the order passed may be wrong or may be right or may or may not be in conformity with the directions but that would be a fresh cause of action for the aggrieved party to seek judicial review and the same cannot be considered to be a wilful violation of the order.
Learned Advocate for Anita says that for the last four years Ranbeer has been trying to frustrate the attempt by Anita to have the Municipal Authorities consider as to whether or not Ranbeer has left requisite open space in terms of Rule 50 of the West Bengal Municipal (Building) Rules, 2007. Presently, the learned Judge, in exercise of contempt jurisdiction, being satisfied that the Chairman of the Municipality has not complied with the Court's direction, has directed filing of fresh affidavit of compliance. The appellant cannot be legitimately aggrieved by such order and has not suffered any prejudice. This is only an attempt to stall the contempt proceeding.
The Municipality is not represented as it seems service on the Municipality is not complete. However, in view of the urgency pleaded, we have decided to take up this matter as we do not propose to pass any order, which may adversely affect the Municipality.
Having given our anxious consideration to the rival contentions of the parties, we are of the view that a prima facie arguable case has been made out by the 8 appellants. It prima facie appears to us that the order dated 15.2.2023, passed by the Chairman of the Municipality, gives rise to a fresh cause of action insofar as Anita is concerned. The correctness or otherwise of that order cannot be considered in contempt jurisdiction. That order may have been or may not have been in conformity with the direction of Court. Still, it would have to be challenged afresh before the appropriate forum in accordance with law.
We are also of the prima facie view that neither in the order dated September 25, 2019 nor in the order dated February 15, 2023, there was any specific direction on the Chairman of the Municipality to conduct local inspection. In any event, as recorded in the order of the Chairman, such inspection was held.
Since we have taken the aforesaid prima facie view and today being the last day before the long puja vacation, while we are of the opinion that we need not stay the operation of the impugned order, we direct that no coercive action will be taken in respect of the property of Ranbeer till the disposal of this appeal.
List this matter once again on 24.11.2023. On that date, affidavit of service will be filed in Court evidencing that the Municipality has been served.
(Arijit Banerjee, J.) (Apurba Sinha Ray, J.) 9