Calcutta High Court (Appellete Side)
Biswajit Ghorai vs The State Of West Bengal & Ors on 24 December, 2024
Author: Ravi Krishan Kapur
Bench: Ravi Krishan Kapur
24.12.2024
01 Ct. No.10
Sws.M
W.P.A. 18726 of 2024
Biswajit Ghorai
-Vs.-
The State of West Bengal & Ors.
Mr. Shashwat Nayak
Mr. S. Sanyal
...for the petitioner
Mr. Amitesh Banerjee
Mr. Tarak Karan
Mr. Akash Dutta
...for the State
Sk. Rejaul Alam
...Intervener
This matter has appeared at the instance of
the petitioner.
The petitioner prays for extension of the
interim order dated 24th July, 2024.
Briefly the petitioner had challenged an order
of demolition dated 15th March, 2023 whereby the
concerned Sub-Divisional Officer, Tamluk had
directed that appropriate steps be taken for
demolition of an illegal construction at the premises
of the petitioner being Plot No. 1951 and 1950 in
Mouza - Bhogpur, P.S. Kolaghat.
This is the second round of litigation between
the parties. In an earlier round of litigation, pursuant
to an order dated passed in WPA 16309 of 2019, the
concerned Sub-Divisional officer, Tamluk, Purba
Medinipur had passed the impugned order directing
demolition of an illegal construction raised at the
subject premises and for recovery of the costs of such
demolition by the petitioner herein.
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Prima facie, the impugned order appears to be
reasoned. In passing the impugned order, the Sub-
Divisional Officer on the basis of an Enquiry Report
arrived at a finding that the land over which the
impugned construction has been raised was
classified as 'Pukur'. Nevertheless, the petitioner
despite being given repeated opportunities was
unable to produce the sanction plan by the
Competent Authority in respect of the impugned
construction. The petitioner was also unable to
produce any land Conversion Certificate at the time
of hearing.
It is contended on behalf of the petitioner that
no notice of demolition proceedings had been served
on the petitioner. As such, there has been violation of
principles of natural justice and the impugned order
is liable to be quashed on that ground alone. It is
also submitted on behalf of the petitioner that in view
of Section 114A (2) of the West Bengal Panchayat Act,
1973, the concerned officer had no jurisdiction to
pass the impugned order on the ground that a
development plan had been published and was in
force in respect of the subject premises. It is further
contended that the subject premises falls within the
territory of Haldia Development Authority and there
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has been a jurisdictional error in passing the same.
Accordingly, the impugned order is liable to be
quashed.
On behalf of an intervener it is submitted that
there is gross suppression and distortion of the
material facts of this case. The earlier round of
litigation being WPA 16309 of 2019 (Joyjit Malakar
vs. The State of West Bengal & Ors.) had been filed by
the intervener. The petitioner has deliberately and
mischievously not impleaded the intervener as a
party respondent notwithstanding the fact that the
petitioner was a party respondent to the earlier round of litigation. In any event, the impugned order is reasoned. Accordingly, there are no grounds whatsoever to interfere with the impugned order. The plea of publication of a development plan and the Development Officer not having jurisdiction are false and have been contemplated with the sole intent to stall the demolition proceedings.
The State is also represented and has filed a Report which, inter alia, records as follows:
"Under Section VII, Sub-Section 44, 45, 46, 52, 53, 54, 55 of West Bengal Town & Country (Planning & Development) Act, 1979, Development Authority may control prohibit permit revoke modify penalize or give notice to stop or remove any unauthorized development not conforming to the Land use 4 & Development Control Plan (LUDCP) adopted for the said planning Area under this jurisdiction. Since the LUDCP has not yet been adopted for the said area under Sub-Section 56 of Section VII, the concerned authority shall have regard to the provision which, in its opinion, will be required to be included for securing the proper planning of the concerned area. The Act does not have provision for such activity as mentioned in the Sub-Section exclusively to any Development Authority."
(emphasis added) The writ petition was filed on 23rd July, 2024. Upon the filing of the writ petition, an interim order dated 24th July, 2024 was passed whereby there was a stay of the operation of the impugned demolition order. It is fairly submitted on behalf of the petitioner that there are no reasons in the impugned order.
Prima facie, a plain reading of the impugned order of demolition reflects that the same is adequately and well reasoned. In the passing of the impugned order, the Sub-Divisional Officer has come to a categorical finding that the petitioner was unable to produce the sanctioned plan passed by the Competent Authority nor was any land conversion certificate produced at the time of hearing. The fact that the land was classified as 'Pukur' is also not disputed on behalf of the petitioner. 5
Insofar as the question of jurisdiction and applicability of Section 114A (2) of the Act is concerned, the Report on behalf of the State clearly demonstrates that there is no such development plan in respect of the subject premises. It is also admitted on behalf of the State that no conversion certificate in respect of the subject premises has been obtained and the land has not been converted from 'Pukur' to 'Vastu'.
In view of the above, at this prima facie stage there is no merit in the contention of the petitioner that the Sub-Divisional Officer in passing the impugned order has no jurisdiction.
It is the matter of some concern that though the earlier writ petition was filed as far back as in 2019, the petitioner on one pretext or the other has managed to get the entire demolition process stalled in respect of the structure which prima facie appears to be illegal and unlawful.
In view of the above, there is no case, far less a prima facie case which the petitioner has been able to demonstrate warranting continuance of the interim order. The balance of convenience and irreparable injury is also not in favour of orders being passed in favour of the petitioner. On the other hand, there is a 6 prima facie case of suppression and misrepresentation which requires fuller examination.
Liberty is granted to the petitioner or intervenor to file an application for addition of parties, if so advised, in accordance with law.
The interim order dated 24th July, 2024 stands vacated.
Let the matter appear in the Combined Monthly List of January, 2025 for hearing.
In the meantime, the parties are directed to exchange affidavits. Affidavit in Opposition, one week from date Reply, if any one week thereafter.
(Ravi Krishan Kapur, J.)