Calcutta High Court (Appellete Side)
Asoke Kumar Bhattacharyya vs Serampore Municipality & Ors on 3 September, 2014
Author: Debasish Kargupta
Bench: Debasish Kargupta
1
03.09.2014.
S.D.
W.P. No. 24873 (W) of 2014
Asoke Kumar Bhattacharyya
Vs.
Serampore Municipality & Ors.
Mr. Raghunath Chakraborty
Ms. Ankita Mitra ...For the Petitioner.
Mr. Goutam Lahiri
Ms. Sruti Lahiri ....for the Municipality.
Ms. Dipti Bhattacharya
...For the Respondent No. 4.
Leave is granted to the petitioner to correct the typographical errors in the cause title so far as the respondents are concerned.
Since all the parties are present before this Court, this matter is taken up for hearing.
This writ application is filed by the petitioner for a direction upon the respondents to demolish the unauthorized construction raised of a land lying and situated at R.S. Dag No. 8645 corresponding to L.R. Dag No. 8652 under L.R. Khatian No. 9394 in 2 Mouza Serampore, District - Hooghly at the instance of the respondent no. 5.
It is submitted by the petitioner that in compliance of an order dated February 13, 2014 passed in a writ application in the matter of Asoke Kumar Bhattacharya vs. Serampore Municipality & Ors. (In re: W.P. No. 2907 (W) of 2014), an order has already been passed by the respondent no. 1 to demolish the above unauthorized construction and the same is communicated to all concerned by a communication issued under the Memo No. 430/Misc‐10, dated June 23, 2014.
It is submitted by the respondent Municipality that steps are being taken for non‐compliance of the decision of the respondent no.
1. It is submitted by the learned counsel appearing on behalf of the respondent no. 5 that an appeal has already been preferred against the aforesaid order dated June 23, 2014 passed by the respondent Municipality. A true copy of the letter dated July 8, 2014 received in the office of the respondent no. 2 is produced before this Court to substantiate the above submissions of the learned counsel appearing for the respondent no. 5.
3
Having heard the learned counsel appearing for the respective parties as also after considering the facts and circumstances of the case, I find that admittedly the respondent no. 5 was a party to the writ application, bearing W.P. No. 2907 (W) of 2014. He was represented by his learned Advocate at the time of hearing of the above writ application on February 13, 2014. In compliance of the above order passed in the above writ application, the respondent no. 1 took a decision in the matter as communicated by a forwarding letter dated June 23, 2014 (annexure "P 5" at page 31 of this writ application).
Sub‐Section (3) of Section 218 of the West Bengal Municipal Act, 1993 prescribes a provision for preferring an appeal and for considerations of submissions made on behalf of the respondent no. 5, the above provision is quoted below:‐ "218. Order for demolition or alteration of buildings in certain cases.‐(1)...............
(2)...............
(3) An appeal against an order made by the Board of Councillors in this behalf shall lie with the [Court having jurisdiction]".
4 After considering the above provision, I do not find any substance in the submissions made on behalf of the respondent no. 5 that an appeal preferred in accordance with law is pending before the competent authority against the above decision of the respondent Municipality. A mere representation dated July 8, 2014 submitted to the Chairman of the respondent Municipality is produced before this Court. The same cannot be treated as a statutory appeal in view of the above provisions of the West Bengal Municipal Act, 1993. It is also not in dispute that the respondent no. 5 is willing to comply with the order passed by the respondent Municipality for demolition of the unauthorized construction under reference.
In view of the above I direct the respondent Municipality to demolish the aforesaid unauthorized construction in accordance with law on the basis of the decision of the respondent Municipality as discussed hereinabove forthwith and positively within a period of fortnight.
This writ application is, thus, disposed of. There will, however, be no order as to costs. 5 Let photostat plain copy of this order, duly countersigned, by Assistant Registrar (Court) be given to the appearing parties on usual undertaking.
( Debasish Kar Gupta, J. )