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2013 DIGILAW 249 (CAL)

Sumanta Bhattacherjee v. STATE OF WEST BENGAL

2013-05-08

JAYANTA KUMAR BISWAS

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Judgment : The Court: The petitioner in this WP under art.226 of the Constitution of India dated April 24, 2013 is seeking the following principal relief:- “a) A writ in the nature of Mandamus commanding the respondents more particularly the respondent no.3 and 4 to take all necessary steps against the complaint of the petitioner dated 26.12.2012 and 8.4.2013 for cancellation of the Building Plan sanctioned and also for demolition of the construction already made encroaching the common passage without any further delay;” Mr. Bhattacharya appearing for the petitioner has placed para.10 of the WP. It is quoted below:- “10. That in the meantime the local Councilor and some respectable persons in the locality hold a meeting regarding the dispute when the petitioner and the private respondent were present and the private respondent in the said meeting given an undertaking that he will submit an application before the respondent no.4 admitting that he obtained the building plan by showing the common passage suppressing the facts as in his Deed the common passage was not mentioned and an agreement was made in presence of the local Councilor and the same was signed by both the parties which is kept with the custody of the said Councillor.” Paragraph 11 of the WP, also relevant, is quoted below:- “11. That the private respondent after that meeting started further construction without making any application before the respondent no.4 with an illegal manner and your petitioner again made a complaint dated 8.4.2013 before the respondent no.4 raising all serious allegations and praying for necessary action against the sanctioned Building Plan and also demolition of the construction made illegally and unauthorisedly encroaching the said 5 feet common passage. Xerox copy of the complaint dated 8.4.2013 is annexed herewith and Marked as Annexure “P/6.” It is evident from the case stated in the W P and revealed by the documents produced therewith that the construction in question was being erected according to sanction given by the authority concerned of the Municipality. It is not the case that any part of the construction has been erected in deviation of the plan. The petitioner’s case rather is that the sanction was obtained suppressing that a part of the area shown in the plan was a common passage. It is not the case that any part of the construction has been erected in deviation of the plan. The petitioner’s case rather is that the sanction was obtained suppressing that a part of the area shown in the plan was a common passage. For ascertaining the correctness of the petitioner’s allegation it is necessary to decide whether the area described by the petitioner as a common passage is actually a common passage or a part of the property of the private respondent. The Board of Councillors of the Municipality empowered to examine the question of cancellation of the sanction on the grounds of misrepresentation or fraud is not empowered to decide whether the area in question is a common passage as claimed by the petitioner. In my opinion, the issue could be decided only by the Civil Court. I do not think by ignoring the petitioner’s representation the authorities of the Municipality committed any wrong. For these reasons, I dismiss the W P. Nothing herein shall prevent the petitioner from approaching the Civil Court, if he is otherwise entitled to do that. No costs.