Calcutta High Court (Appellete Side)
Rikta Mondal vs The Rajpur Sonarpur Municipality & Ors on 13 August, 2014
Author: Debasish Kar Gupta
Bench: Debasish Kar Gupta
1
13.08.2014
srm
W.P. No. 21668 (W) of 2014
Rikta Mondal
Versus
The Rajpur Sonarpur Municipality & Ors.
Mr. Hiranmay Bhattacharyya
Mr. Atanu Chakraborty
...For the Petitioner.
Mr. Mir Anuruzzaman
...For the Municipality.
Mr. Dilip Kumar De,
Mr. Sunanda Mohan Ghosh
...For the Respondent No.5.
This writ application is filed by the petitioner for a direction upon the respondent‐Municipality to demolish the unauthorised construction at Holding No.302 under Rajpur‐Sonarpur Municipality.
According to the petitioner, by an order dated November 27, 2012 passed by the respondent No.2, the municipal Engineer was directed to detect the portion of illegal construction made by the respondent No.5 at the premises under reference and to take appropriate steps for demolition of that unauthorised construction. The above order was passed in compliance of an order dated June 12, 2012 passed in the matter of Smt. Rikta Mondal vs. The Rajpur‐Sonarpur Municipality & Ors. (In Re: W.P. No.11008 (W) of 2012). 2 The petitioner filed a writ application under Article 226 of the Constitution of India in the matter of Rikta Mondal vs. The Rajpur‐Sonarpur Municipality & Ors. (In Re: W.P. No.10584 (W) of 2014) for a direction upon the respondent Municipality to initiate a proceeding on the basis of her letter of complaint. It appears from the materials on record that the above writ application was disposed of on April 25, 2014 taking into consideration the fact of passing the reasoned order dated November 27, 2012 as also with liberty upon the respondent No.5 to prefer statutory appeal in accordance with the provisions of sub‐section (3) of Section 218 of the West Bengal Municipal Act, 1993 against the aforesaid reasoned order.
According to the petitioner, no appeal has yet been preferred against the above reasoned order and the time limit of preferring the appeal against the above order has also expired. Reliance is placed by the learned Advocate appearing on behalf of the petitioner towards the provisions of Section 3 and sub‐section (2) of Section 21 of the Bengal, Agra, Assam Civil Courts Act, 1887 read with the provisions of Article 116 of the Limitation Act in support of his above submissions.
It is submitted by the learned Counsel appearing on behalf of the respondent No.5, on instruction, that a statutory appeal has already been preferred by the respondent No.5 before the Court of Learned Sub‐Divisional 3 Magistrate at Baruipur, South 24‐Parganas. According to him, this writ application is not maintainable till disposal of the above appeal. It is also submitted by him that in view of the prayer for a direction upon the respondent authority to demolish the alleged unauthorised construction under reference, the writ application is not maintainable. According to him, the above prayer cannot be granted in favour of the petitioner considering the order dated April 25, 2014 passed in W.P. No.10584 (W) of 2014 for implementation of the order dated November 27, 2012 in accordance with law.
I have heard the learned Counsel appearing for the respective parties at length and I have considered the facts and circumstances of this case.
It is not in dispute that a reasoned order dated November 27, 2012 was passed with a direction upon the municipal Engineer to take steps for ascertaining the area of unauthorised construction at the premises under reference and to demolish the same. No material is produced before this Court to show that a statutory appeal preferred under sub‐section (3) of Section 218 of the West Bengal Municipal Act, 1993 was admitted and/or pending before the competent Court of law. Needless to point out that no material is placed before this Court staying the operation of the reasoned order dated November 27, 2012 for demolition of the unauthorised 4 construction at the premises under reference. Therefore, the respondent Municipality is under obligation to implement the order of demolition dated November 27, 2012.
Before parting with this case, let it be recorded that this Court has not examined the question of appropriate Court for preferring a statutory appeal under the provisions of sub‐section (3) of Section 218 at this stage. In view of the admitted fact recorded hereinabove it is not required. The competent authority of the respondent Municipality is directed to implement the reasoned order dated November 27, 2012 within 30 days, provided the above authority is restrained by a competent Court of law to implement the same.
This writ application is, thus, disposed of.
There will be, however, no order as to costs.
Urgent photostat certified copy of this order be supplied to the parties, if applied for, subject to compliance with all necessary formalities.
( Debasish Kar Gupta, J. )