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2013 DIGILAW 87 (CAL)

Bidhan Nagar-1 Gram Panchayat v. Bijan Kumar Roy

2013-02-12

ANINDITA ROY SARASWATI

body2013
JUDGMENT Anindita Roy Saraswati, J. 1. The petitioner Bidhan Nagar-1 Gram Panchayat has approached this Court under Article 227 of Constitution of India against the order dated 21.08.2010 in Misc. Appeal No. 1 of 2010 passed by Civil Judge, Senior Division, Siliguri allowing thereby the injunction application filed by the plaintiff/opposite party and directing both the parties to maintain status quo in respect of nature and character of suit land till disposal of the suit. The fact of the case is that the plaintiff initiated the Title Suit No. 103 of 2008 before the Civil Judge, Junior Division, Siliguri praying for decree of declaration, permanent injunction and other consequential relief. According to the plaintiff, he is the owner of the suit plot measuring 0.01 decimal and is in possession and the same. Plot No. 3711 belongs to one Nirapada Mallik who constructed the pukka building on the said land which is adjacent to the plaintiffs' land. As the plaintiff has some dispute with him for which he threatened the plaintiff by taking help of Gram Panchayat Pradhan to protect his own interest. The plaintiff made a temporary Goomty Ghar for business purpose with tin set covering 72-square feet on that land. The Pradhan of the Gram Panchayat took the matter on his official capacity and issued a notice being Memo No. 31579/08/2009 dated 26.06.2008 directing the plaintiff to demolish the structure. It is the case of the plaintiff that the Pradhan cannot issue such notice without hearing him as per the relevant position of Panchayat Act. The plaintiff accordingly prays for an order of injunction before the Trial Court. 2. It reveals from the record that the Civil Judge, Junior Division, Siliguri on the first instance though passed an order of interim injunction in favour of the plaintiff but after contested hearing of the said application rejected that application with an observation that plaintiff has suppressed the material fact and has not come before the Court with clean hand. 3. However, being aggrieved and dissatisfied with the said order and the plaintiff as appellant preferred an appeal before the District Judge, Darjeeling which was ultimately heard by the Civil Judge, Senior Division, 1st Court, Siliguri, i.e. Misc. Appeal No. 1(2)of 2010. After contested hearing the Misc. 3. However, being aggrieved and dissatisfied with the said order and the plaintiff as appellant preferred an appeal before the District Judge, Darjeeling which was ultimately heard by the Civil Judge, Senior Division, 1st Court, Siliguri, i.e. Misc. Appeal No. 1(2)of 2010. After contested hearing the Misc. appeal No. 1, was allowed on contest and the 1st Appellate Court, set aside the order passed by the learned Civil Judge, Junior Division dated 22.12.2009 passed an order of injunction directing the parties to maintain the status quo in respect of the nature and character of the suit land till the disposal of the suit. 4. Learned 1st Appellate Court in his order discussed all the documents filed by the parties as well as the decisions referred by the parties and mainly discussed the decision reported in AIR (1997) Guj 64 on which learned Court for the defendant relied a lot and came to the findings that the plaintiff has stronger and prima facie came to go in trial. The question of balance of convenience and inconvenience also supports the case of the plaintiff. 5. Be that as it may the learned Advocate for the petitioner submitted that the learned 1st Appellate Court was not at all justified in passing injunction order in favour of the plaintiff/opposite party who created the nuisance due to unauthorise construction erected on the road and the same cause obstruction t o the shop owners adjacent to the road. According to him a road will be construct ed through the suit land under Pradhan Mantry Gram Sarak Yojana Scheme for which the land in question was acquired by the Siliguri Mahakuma Parisad but the plaintiff/opposite party suppressed all that material facts before the Lower Court. 6. Learned Advocate for the opposite party drew my attention to some copy of the document to prove that the plaintiff is in possession of the suit property. He also filed copy of rent receipt and khatians in support of his such case. He further argued that by the notice dated 02.06.2008 the Prodhan of Bidhan Nagar 1 Gram Panchayat directed the plaintiff to demolish the construction within 72 hours but as per the provision of section 23(6) of West Bengal Panchayat Act, the authority can demolish any new structure after giving the owner and opportunity of being heard. He further argued that by the notice dated 02.06.2008 the Prodhan of Bidhan Nagar 1 Gram Panchayat directed the plaintiff to demolish the construction within 72 hours but as per the provision of section 23(6) of West Bengal Panchayat Act, the authority can demolish any new structure after giving the owner and opportunity of being heard. In this case without giving any opportunity to be heard to the plaintiff the petitioner issued the notice which is quite invalid and illegal. 7. Learned Advocate for the petitioner argued that the notice was issued under section 25(2) of Panchayat Act, not under section 23 of the Panchayat Act. He further place reliance on BLT RO report dated 21.10.2005 from which it is apparent that the suit plot is in Panchayat Act not in possession of any person. He also shows me another copy of notice issued by Executive Engineer, West Bengal SRDA Siliguri Division to prove that the suit land is not in possession of anybody. 8. Now, I have to see, how far the learned 1st Appellate Court was justified in passing an order of injunction in favour of the plaintiff/opposite party. As per the provision of statutes for the purpose of obtaining an order of injunction the plaintiff have to prove his prima facie title and possession in respect of suit property and also have to prove that the question of balance of convenience and inconvenience supports his case and he will surfer irreparable injury in absence of any injunction order. 9. To establish his prima facie case the plaintiff filed one finally published LRROR as well as one attested copy of ROR to prove that the suit land is in possession of the plaintiff he also filed dhakila-showing payment of rent in respect of the land to the state. All these document supports the plaintiffs' prima facie title and possession over the suit property. Furthermore, the defendant/petitioner sent a notice dated 2.6.2008 by which the plaintiff was directed to demolish a structure which was prepared by him on the suit land. In this circumstances it is quite clear that the defendant itself also admitted the plaintiffs possession over the suit property. 10. Furthermore, the defendant/petitioner sent a notice dated 2.6.2008 by which the plaintiff was directed to demolish a structure which was prepared by him on the suit land. In this circumstances it is quite clear that the defendant itself also admitted the plaintiffs possession over the suit property. 10. The defendant/petitioner filed a copy of the notice issued by the Executive Engineer, West Bengal, SRDA Siliguri, to establish that the said land was acquired for the purpose of construction of a road under Pradhan Mantri Gram Sarak Yojana but on perusal of notice dated 28.01.2008 it appears to me that there is nothing in the said notice regarding acquired of the suit land by the Siliguri Mahakuma Parisad or any other concern. 11. The defendant/petitioner though relied a lot upon the report of the BLLRO dated 22.03.2005 wherein it is mentioned that the suit land is an abutting Panchayat road and not in possession of any person. But the notice of defendant itself demolished such contention of the BLLRO and it is well established from the said notice that the plaintiff is in possession of suit property. 12. However, whether such possession of the plaintiff is legal or illegal that will be determined at the time of final hearing of the suit. But at this stage it is quite clear to me that the plaintiff/opposite party able to establish the existence of his strong prima facie case. 13. The petitioner/defendant that claimed that the notice dated 2.6.2008 is a notice under section 25(2) of Panchayat Act but I already observed that the petitioner failed to establish at this stage that the suit land was acquired for the construction of public road for the purpose of public interest. So there is no scope to describe the same notice as a notice under section 25(2) of Panchayat Act. 14. However, it is quite clear from the said notice of the petitioner that it is nothing but a notice under section 23(6) of Panchayat Act. As per provision of section 23(6) Panchayat Act it is required to pass a direction to demolish the existence structure by the owner within such period as may specified in the said order after giving opportunity to the owner of the land of being heard. As per provision of section 23(6) Panchayat Act it is required to pass a direction to demolish the existence structure by the owner within such period as may specified in the said order after giving opportunity to the owner of the land of being heard. In this case it is not at all established by the petitioner that the said notice was issued after hearing the submission of the plaintiff/opposite party. It is therefore quite clear to me that the plaintiff/opposite party able to establish that in absence of any injunction order he will suffer irreparable loss and injury. 15. In that given circumstances I am in a view that the 1st Appellate Court was quite justified in passing a temporary injunction order in form of maintaining status quo by the both parties till the disposal of the suit. 16. In that circumstances, I find no merit in this application which is liable to be dismissed. 17. In view of the aforesaid, this application is dismissed. There shall be no order as to cost. Urgent Xerox certified copy of this judgment, if applied for, be given to the parties on usual undertaking. Application dismissed