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2016 DIGILAW 896 (CAL)

Kartick Halder v. State of West Bengal

2016-11-21

BISWANATH SOMADDER, SANKAR ACHARYYA

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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. The appeal as well as the application for stay arises out of an order dated 21st July, 2016, passed in WP 28261 (W) of 2015. By the said order, the learned Single Judge was pleased to dismiss the writ petition filed by the appellants herein. It appears from the impugned order dated 21st July, 2016, that the Asansol Municipal Corporation, being the respondent no.3 herein, issued an order for demolition of an unauthorised construction of a boundary wall which, admittedly, had been constructed by the members of the flat owners of the concerned apartment. The grievance of the writ petitioners was that they had made a representation on 16th November, 2015, to the Administrator of Asansol Municipal Corporation for reconsideration of its decision, but the Corporation did not do so. Upon considering the facts and circumstances of the case and after hearing the learned advocates for the parties and on going through the writ petition, the learned Single Judge observed that he found nothing to reconsider the order passed by the Administrator of the Asansol Municipal Corporation. The writ petitioners never disputed that the construction of the boundary wall had been made on a plot of land belonging to the Asansol Municipal Corporation, without any permission. Thus, it was admittedly an unauthorised construction. The Secretary of the Asansol Municipal Corporation had rightly passed the order which was annexed to the writ petition as annexure “P-3”. The justification sought to be given for such unauthorised construction was too frivolous to entertain. 3. The impugned order passed by the learned Single Judge on 21st July, 2016, reveals that the essential ground for the writ petitioners in approaching the writ Court was non-consideration of their representation dated 16th November, 2015, addressed to the Administration of the Asansol Municipal Corporation. It is quite well settled by now that a representation may be considered by a competent authority only if it is so provided under a statutory provision and the Court should not pass an order directing any authority to decide a representation. In this context, one may take notice of the observations made by the Supreme Court in Union of India & Anr. Vs. In this context, one may take notice of the observations made by the Supreme Court in Union of India & Anr. Vs. Ashok Kumar Aggarwal, reported in (2013) 16 SCC 147. 4. For reasons stated above and in the facts and circumstances of the instant case, this Court finds no justification to interfere with the impugned order dated 21st July, 2016. The appeal and the application are devoid of any merit and are liable to be dismissed and are accordingly dismissed. 5. Dismissal of the appeal and the application, however, shall not prevent the appellants from seeking any statutory remedy before a statutory authority, provided of course, the same is available in law. 6. Urgent photostat certified copy of this order, if applied for, be given to the learned advocates for the parties.