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Calcutta High Court (Appellete Side)

Sri Biman Naskar And Another vs Rajpur Sonarpur Municipality And ... on 30 August, 2017

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30.08.2017.
Item No. 30
                                                  (W)
                                   W.P. 22008           of 2017

                                Sri Biman Naskar and another.
                                             Vs.
                           Rajpur Sonarpur Municipality and others.


                    Mr.   Partha Sarathi Bhattacharya,
                    Mr.   Mani Sankar Chattopadhyay,
                    Mr.   Tarak Nath Sarkar,
                    Mr.   Raju Bhattacharya.
                                              ... for the petitioners.

                    Mr. Himadri Kumar Bandyopadhyay.
                                         ... for the Municipality.

                    Mr. Prokash Chandra Mondal,
                    Mr. Debabrata Mondal.
                                     ... for the respondent no. 5.

An artificial confusion is sought to be created at the instance of the respondent no. 5 over her identity and an argument is advanced on her behalf that the petitioners wanted to execute and/or implement the decree passed in a civil suit by filing the instant writ petition.

Before this Court proceeds to verify the subject matter of dispute in the instant writ petition, it would be apposite to record the reliefs claimed in the writ petition, which runs thus:

"a) A writ in the nature of Mandamus commanding the respondents authorities, their men, agents and subordinate to initiate appropriate steps in terms of the provision of the Rajpur Sonarpur Municipality to demolish unauthorized construction made by the private respondent upon the schedule.

b) A writ in the nature of Mandamus commanding the respondents, their men, agents and subordinates to initiate 2 appropriate step for demolition of the portion of the unauthorized construction upon the common passage immediately without any further delay.

c) A writ in the nature of Certiorari directing the respondents authorities their men, agents and subordinates to transmit all papers and documents pertaining to the instant dispute so that conscionable justice may be done.

d) Rule NISI in terms of prayer (a), (b) and (c) above.

e) Costs/cost incidental.

f) Interim order direct to the private respondent not to make further construction by the private respondent.

g) Any other order or orders, direction or directions, as this Hon'ble Court may deem fit and proper."

From bare look of the reliefs claimed in the writ petition, there is no hesitation or doubt in my mind that the contention of the said respondent is factually incorrect.

The petitioners filed the instant writ petition to implement an order of demolition passed by the Rajpur Sonarpur Municipality in a proceeding initiated on an alleged unauthorized and illegal construction. The said proceeding was initiated on the basis of a direction passed by this Court in an earlier writ petition.

The petitioners applied for recalling the said order, which was dismissed with categorical finding that the directions passed therein did not cause any prejudice to the petitioners. Simultaneously, a contempt application filed by the petitioners was also dismissed and by that time the said Municipality proceeded with the matter and ultimately the order is passed.

The said respondent is trying to impress this Court that the partition suit was filed by the predecessor in interest of the petitioners against a wrong person and the Partition Commissioner's report does not contain the true and correct state of affairs. It is submitted that an appeal is filed before the appellate court along with an application for condonation of delay, which is pending.

I am unable to persuade myself with the submission advanced by the said respondent that either the preliminary or final decree or the report of the Partition Commissioner are liable to be interfered with in the writ petition.

The Writ Court does not act as a Court of Appeal against a judgment and decree passed by the civil court in the suit. The remedy is provided under the Code of Civil Procedure and, therefore, this Court cannot dwell upon and embark upon an enquiry to find out whether the decree, be it preliminary or final, and the report of the Partition Commissioner are illegal, bad and not in commensurate with the provisions of law.

Furthermore, there is a fallacy in the submission of the said respondent over the nature of the reliefs claimed in the writ petition as well as the Court should stay away from passing any direction for demolition having passed ex parte.

The petitioners have approached the Municipal Authorities with an application and the said application is still pending.

This Court, therefore, does not find that there is any substance in the submission of the said respondent that the Court should not pass an order reminding the authorities of their statutory duties and responsibilities to proceed with their own orders passed in this regard.

So long the order of demolition stands and stares at the face of the said respondent, the statutory authority should not postpone the implementation/execution of its order as an application for recalling has been passed or an appeal against the final decree is challenged before the appellate forum. There is no restraint order passed by the civil court and, therefore, the petitioners cannot be blessed with an order as prayed for in the instant writ petition.

Since the said respondent has filed the application for recalling the order of demolition, the competent authority is directed to dispose of the said application within two weeks from the date of communication of this order.

The said authority shall not be swayed by the aforesaid direction and shall not be construed to have bestowed upon any right to the petitioners or the legality of the said application or the power of the Municipal Authorities to recall its own order under the relevant Act and/or Rules framed thereunder.

In the event, the said application is decided within the time indicated herein above and the Municipal Authorities found that there is no impediment in proceeding to implement the order of demolition, it shall do so and shall see that the entire exercise is completed within three weeks therefrom without serving any notice upon the said respondent or any other person.

It goes without saying that if the circumstances so warrant, it is open to the Municipal Authorities to approach the local police station and on such approach, the Inspection in-Charge of the concerned police station shall render all protection, assistance and help to them in carrying out the said demolition work, if necessary, adequate steps and measures shall be taken to remove the objectors from the site.

With these observations, the writ petition is disposed of. There shall, however, be no order as to costs.

Urgent photostat certified copy of this order, if applied for, be given to the parties within three days.

ab                                     (Harish Tandon, J.)