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2007 DIGILAW 325 (CAL)

Feluram Mondal v. Suboth Kr Mondal

2007-05-02

ARUN KUMAR BHATTACHARYA, KALYAN JYOTI SENGUPTA

body2007
Judgment :- (1). WE have gone through the application under section 5 of the Limitation act for condonation of delay of 162 days. Grounds made out in the application under section 5 of the Limitation Act are not so satisfactory for which the Court would have ordinarily condone the delay. But, having seen the impugned order passed by the learned Trial Judge, we are inclined to condone the delay, in order to hear out the appeal itself. (2). ACCORDINGLY, the application under section 5 of the Limitation Act is allowed. Let the appeal now be registered. (3). PRIMA facie, we are of the view that the order of the learned Trial Judge calls for interference for various reasons, which would be spelt out in our order later. (4). BEFORE we decide the matter, we have decided to hear out the appeal itself today, dispensing with the service of notice upon the Panchayat Pradhan or the State authority, as they were neither the really aggrieved parties nor did they appear before the learned Trial Judge. The real affected party is the respondent No. I/writ petitioner who is present before us. (5). PRIOR to filing of the writ petition, the writ petitioner/respondent No. 1 filed a civil suit against the appellant before us, alleging a construction having been made encroaching his property. The following reliefs have been prayed for before the learned Civil Court: " (a) for a decree for declaration that the plaintiff is the owner and occupier of the a Schedule property in suit; (b) for a decree for declaration that the defendant Nos. 1 to 3 have no right, to raise construction over the b Schedule noted property in violation of the provisions of West Bengal Panchayat Act, 1973 and rules framed thereunder; (c) for permanent injunction restraining the defendant Nos. 1 to 3 and their men, agents, servants from making/raising any illegal pucca construction over the b Schedule noted property after violating the Panchayat Act, 1973 and rules till disposal of the suit; (d) for temporary injunction as per prayer (c) of the plaint; (e) for mandatory injunction ; (f) for cost; (g) for leave under Order 2 Rule 2 of CP Code; (h) for any other relief/reliefs to which the plaintiff is entitled to law and equity;". (6). IN that civil suit, the Panchayat Pradhan was not a party. (6). IN that civil suit, the Panchayat Pradhan was not a party. The said suit was filed on or about 6th December, 2004. In that suit, according to the learned lawyer for the respondent No. I/writ petitioner, necessary interim order of injunction was obtained. In violation of the said order of injunction, the appellant before us, alleged to have constructed a structure encroaching the writ petitioners property. (7). BEFORE that, on or about 13th September, 2004, a complaint was made to the Panchayat Pradhan, Maju Gram Panchayat alleging making of construction without leaving the statutory space. We have seen the text of the complaint made to the Panchayat Pradhan wherefrom it appears that there was no allegation or grievance of making construction without permission of the panchayat Pradhan. Pursuant to the said complaint, Panchayat Pradhan heard the matter, serving notice upon both the parties and passed an order on 1st October, 2004 asking the appellant herein not to make any construction (8). ACCORDING to the respondent No. I/writ petitioner, in spite of the aforesaid prohibitory order, the appellant went on making construction. As such, he had no option but to approach the Civil Court, as stated earlier. When order of the civil Court proved to be ineffective, the respondent No. I/writ petitioner filed the writ petition in this Court for demolition of the construction, allegedly made illegally by the appellant, on or about 11th May, 2005. (9). WHEN the writ petition was filed, the suit was kept pending. Subsequently, the suit was withdrawn from the Civil Court. Thereafter, the writ petitioner proceeded with the writ petition. The learned Trial Judge passed an order directing the District Magistrate, Howrah to look into the problem and see that the unauthorised portion is demolished by the Gram Panchayat and necessary police help is rendered to the Gram Panchayat for implementation of the order. In the body of the writ petition, there is no whisper that the construction was made without obtaining any prior permission of the Panchayat Pradhan. (10). NOW, the question is whether the learned Trial Judge could pass such an order on the given facts and circumstances stated in the writ petition and also narrated by us. We are of the view that the dispute between the respondent no. (10). NOW, the question is whether the learned Trial Judge could pass such an order on the given facts and circumstances stated in the writ petition and also narrated by us. We are of the view that the dispute between the respondent no. I/writ petitioner and the appellant is essentially a private dispute as the dispute relates to construction encroaching someones land and the same squarely comes within the domain of the private law field and not within the domain of West Bengal Panchayat Act, 1973. (11). PANCHAYAT Pradhan has no omnibus jurisdiction like a Civil Court and has been vested with a limited jurisdiction in respect of illegal construction, as provided hi section 23 of the West Bengal Panchayat Act, 1973, which is set out herein below: "section 23. Control of building operations.- (1) No person shall erect any new structure or building or make any addition to any structure or building in any area within the jurisdiction of a Gram Panchayat except with the previous permission in writing of the Gram Panchayat: provided that such erection of new structure or new building or such addition to any structure or building or such permission of the Gram Panchayat shall be subject to such rules as may be made by the State Government in this behalf: provided further that a Gram Panchayat shall not accord permission for erection of a new structure, or construction of a new building, if the proposal for such erection or construction, as the case may be,- (a) has any provisions for erection or construction of any dry latrine, by whatever name called, and (b) does not have any provision for erection of a sanitary latrine of any description. (2) Every person seeking permission under sub-section (1) shall make an application in writing to such authority, in such form, containing such particulars and on payment of such fee as may be prescribed : provided that no permission under sub-section (1) shall be necessary for erection of any new thatched structure, tin shed or tile shed without brick wall covering an area not exceeding eighteen square meters where such structure or shed does not cover more than three-fourth of the total area of the land (including appurtenant land) is a setback of not less than nine-tenth metre on the road-side : provided further that the State Government may, by order, exempt any structure or building or any class of structures or buildings from the operation of the provisions of sub-section (1) and of this sub-section. (3) On receipt of such application the authority, after making such enquiry as it considers necessary and in accordance with such rules as may be made by the State Government in this behalf, shall, by order in writing, either grant the permission or refuse it, recording in the case of refusal the reasons therefor. (4) Any person aggrieved by an order of the authority under sub-section (3) refusing permission may, within ninety days from the date of communication of such order to him, prefer an appeal to such appellate authority as may be prescribed. (5) No appeal shall lie against the order of the appellate authority referred to in sub-section (4). (6) Where any new structure or new building or any addition to any structure or building is being or has been erected or made, as the case may be, in contravention of the provisions of sub-section (1), the authority may after giving the owner of such building an opportunity of being heard, make an order directing the demolition of the building by the owner within such period as may be specified in the order and in default the authority may itself effect the demolition and recover the cost thereof from the owner as a public demand. (7) Any person who contravenes the provisions of sub-section (1) shall be liable on conviction by a Magistrate to a fine which may extend to two hundred and fifty rupees." (12). (7) Any person who contravenes the provisions of sub-section (1) shall be liable on conviction by a Magistrate to a fine which may extend to two hundred and fifty rupees." (12). IT is clear from the said section that only in respect of limited sphere, the Panchayat Pradhan has jurisdiction to pass order of demolition, upon giving hearing to the owner and that can only be done only when there has been contravention of any provision of sub-section (1) of section 23 of the said Act and not otherwise. (13). FROM the records, it appears that admittedly the Panchayat Pradhan has passed a prohibitory order against the appellant herein prohibiting him from making any construction without keeping the statutory space. It was neither the grievance nor the issue whether the construction has been made without permission or not. (14). WE are of the opinion that Panchayat Pradhan has no authority or jurisdiction to pass any prohibitory order or to pass any interim order and such power has not been given by the statute to him. He can pass a final order, as mentioned in sub-section (6) of Action 23 of the said Act. The Panchayat Pradhan has passed an order without having jurisdiction and, as such, the said order is a nullity and the same cannot and could not be enforced. The learned Trial judge perhaps overlooked the aforesaid provision of law and directed the District magistrate to look into the problem and to see that the unauthorised portion is demolished by the Gram Panchayat. (15). PLEA of unauthorised construction is founded on the plea of encroachment and not founded upon allegation of the construction being made without permission. The learned Trial Judge, with great respect, has fallen in error asking the District Magistrate and police authority to implement a null and void order. Therefore, this order is not sustainable in the eye of law and the same is hereby set aside. (16). IT is submitted that prior permission was obtained for construction and construction was made according to this permission. Such statement and submission is denied and disputed by the learned Counsel for the respondent no. 1/ writ petitioner. We would have kept the matter pending for hearing, but since the offending structure has been demolished, we do not wish to proceed with this matter any more. (17). Such statement and submission is denied and disputed by the learned Counsel for the respondent no. 1/ writ petitioner. We would have kept the matter pending for hearing, but since the offending structure has been demolished, we do not wish to proceed with this matter any more. (17). ACCORDINGLY, we leave the parties to take action in accordance with law. If the appellant is aggrieved otherwise for such demolition, then he will be entitled to seek appropriate reliefs before the appropriate forum as we are of the view that the order of learned Trial Judge could not have been passed on the given facts and circumstances of this case, as it was essentially a dispute of civil nature and the order of the Panchayat Pradhan is a null and void one. (18). ALLEGATIONS contained in the application under sections of the Limitation act are not deemed to have been admitted by the respondent No. 1/ writ petitioner since we did not call for any affidavit. There was no scope for passing any order on the application for stay as the demolition order has already been carried out. Therefore, we did not ask the parties to file any affidavit. (19). THE appeal is, thus, disposed of. There will be no order as to costs. In view of disposal of the appeal, all connected applications stand disposed of. Appeal disposed of.