Research › Search › Judgment

Calcutta High Court · body

2016 DIGILAW 736 (CAL)

Tapan Kumar Dutta v. State of West Bengal

2016-09-21

BISWANATH SOMADDER, SANKAR ACHARYYA

body2016
JUDGMENT : Biswanath Somadder, J. 1. By consent of the parties, the appeal is taken up for hearing by treating the same as on day’s list along with the application for stay. 2. Let the affidavit of service filed in Court today be taken on record. 3. The appeal arises out of an order dated 8th August, 2016, passed by the learned Single Judge. Perusing the said order, it appears that the learned Single Judge refused to interfere with the order passed by the Pradhan of the concerned Gram Panchayat. The Pradhan’s order – which appears to have been signed on 17th June, 2016 – was not exactly a suo motu order in exercise of his powers under the West Bengal Panchayat Act, 1973, but was an order passed pursuant to an earlier order of the writ Court in a previous writ proceeding initiated by the private respondent herein. The said writ petition, being WP 10469 (W) of 2015, was disposed of by an order dated 25th April, 2016. 4. Even a bare perusal of the pleadings reveals that a private dispute – purely civil in nature – has been brought into surface by the private respondent herein, not only in the earlier writ proceeding, but also in the proceedings before the Pradhan of the concerned Gram Panchayat, which gave rise to filing of the writ petition by the appellants herein that was ultimately dismissed. 5. The writ Court is not the proper forum to adjudicate upon private disputes between two or more parties. Such disputes are required to be adjudicated upon by a competent civil Court. That apart and in any event, the dispute which gave rise to the cause of action was essentially a boundary wall dispute existing between the appellants on one hand and the private respondent on the other. 6. In the facts of the instant case, section 23 of the West Bengal Panchayat Act, 1973 was sought to be invoked by the Pradhan of the concerned Gram Panchayat pursuant to the order dated 25th April, 2016, passed in the earlier writ proceeding. The scheme of section 23 of the West Bengal Panchayat Act, 1973, primarily deals with erection of any new structure or building or making any addition to any structure or building in any area within the jurisdiction of a Gram Panchayat. The scheme of section 23 of the West Bengal Panchayat Act, 1973, primarily deals with erection of any new structure or building or making any addition to any structure or building in any area within the jurisdiction of a Gram Panchayat. Control of such building operations is within the domain of the concerned Gram Panchayat and no construction can take place except with the previous permission in writing of the concerned Gram Panchayat. Erection of new structure or new building or addition to any structure or building or permission of the concerned Gram Panchayat, however, is subject to such rules as may be made by the State Government in this behalf. In this regard, it is noticed that the West Bengal Panchayat (Gram Panchayat Administration) Rules, 2004 provides, inter alia, rules regarding control of building operations under Chapter IV of the said rules. Rule 19 of the West Bengal Panchayat (Gram Panchayat Administration) Rules, 2004, reads as follows: “19. Exemption from permission. ––(1) No permission of the Gram Panchayat shall be necessary for erection of any thatched structure, tin shed, or tile shed, without brick wall, covering an area not exceeding eighteen square meters, and such structure or shed does not cover more than three-fourth of the total area of the land including the land appurtenant thereto. Provided that no permission of the Gram Panchayat shall be required for construction of houses under poverty alleviation programme. (2) Permission of the Gram Panchayat shall not be necessary for repair of an existing structure or building unless – for erection of a boundary wall unless it is made of brick or cement and the bounded area is not kept as vacant land but it is used or likely to be used as stack yard or for any commercial or institutional purpose either on open space or by erecting temporary shed.” (i) any structural change is involved, or (ii) such repair brings any change in the existing covered area, or (iii) such repair includes any addition of a projection from the existing structure or building ground level or upper level. (3) Permission of a Gram Panchayat shall not be necessary for erection of a boundary wall unless it is made of brick or cement and the bounded area is not kept as vacant land but it used or likely to be used as stack yard or for any commercial or institutional purpose either on open space or by erecting temporary shed” 7. A bare perusal of sub-rule (3) of Rule 19, as quoted above, reveals that no permission from a Gram Panchayat is necessary for erection of a boundary wall unless it is made of brick or cement and the bounded area is not kept as vacant land, but it is used or likely to be used as a stack yard or for any commercial or institutional purpose, either on open space or by erecting temporary shed. In other words, if a boundary wall is erected out of brick or cement and within the bounded area, the land is vacant or used for non-commercial or non-institutional purpose, there is no requirement for permission from the concerned Gram Panchayat. 8. The clear language of the statute is self-explanatory in nature. The factual narration preceding the decision rendered by the Pradhan of the Gram Panchayat – which was the subject-matter of challenge before the writ Court – does not disclose construction of a boundary wall for commercial or institutional purposes for which permission was required to be obtained in terms of sub-rule (3) of Rule 19 from the concerned Gram Panchayat. Rather, the factual narration preceding the decision rendered by the Pradhan of the concerned Gram Panchayat clearly reveals that the said wall was being constructed around the perimeter of a residential house of the appellants. As such, there was no unauthorized construction of a boundary wall which could have led to an order passed by the Pradhan of the concerned Gram Panchayat for demolition. The learned Single Judge while dismissing the writ petition did not consider this aspect of the matter at all. The other significant aspect which remained unnoticed before the learned Single Judge is that it is not the Pradhan but the concerned Gram Panchayat which is the proper authority/body empowered to either grant or refuse permission for any erection or construction or repair as envisaged under Rule 19 of the West Bengal Panchayat (Gram Panchayat Administration) Rules, 2004. 9. The other significant aspect which remained unnoticed before the learned Single Judge is that it is not the Pradhan but the concerned Gram Panchayat which is the proper authority/body empowered to either grant or refuse permission for any erection or construction or repair as envisaged under Rule 19 of the West Bengal Panchayat (Gram Panchayat Administration) Rules, 2004. 9. The impugned order of the learned Single Judge dated 8th August, 2016, for reasons stated above, is liable to be set aside and is accordingly set aside and the writ petition is allowed upon setting aside the order passed by the Pradhan of the concerned Gram Panchayat, which was signed on 17th June, 2016. 10. This Court, however, makes it clear that the private rights of the appellants as well as the private respondent herein have not been interfered with and can be adjudicated upon by a competent civil Court in accordance with law. 11. The appeal and the application for stay are accordingly disposed of. 12. Urgent photostat certified copy of this order, if applied for, be given to the learned advocates for the parties.