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2016 DIGILAW 911 (CAL)

Basanti Rani Sarkar v. State of West Bengal

2016-11-23

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 19th July, 2016, whereby the learned Single Judge proceeded to dismiss the writ petition for reasons stated in the said order. The order, in its entirety, is reproduced hereinbelow : – “Let the affidavit of service filed in Court today be kept with the record. The petitioner has challenged a communication dated December 18, 2014 which has been annexed to the writ petition as ‘Annexure P-6’. By the said communication, the Estate Manager, Kalyani had intimated the petitioner to start construction of the proposed building immediately and to complete the construction by June 30, 2015 i.e. two years’ time which was extended to the petitioner from the date of the order of the Court in the earlier round of litigation. Ms. Dey (Basu), the learned advocate for the petitioner submits that the petitioner wanted to construct a house on the plot of land but she could not do so because of interference by local hooligans. Therefore, she wants the communication being ‘Annexure P-6’ to be set aside. I decline to entertain the present writ petition for two reasons. First, the time limit fixed by the Estate Manager i.e. within June 30, 2015 has long expired and the petitioner had filed the present writ petition not even three weeks before the expiry of the said period. That apart, if the petitioner feels aggrieved by the interference of any outsider, the more proper course for her will be to contact the law-enforcing agency and in case the law-enforcing agency does not provide the requisite security for the petitioner for raising the construction, she should have taken out an application for police inaction. The Court in its present determination cannot decide that matter nor does it fall under the subject matters covered by the Group-V of the Classification List of the Writ Rules. Alternatively, the petitioner has a prayer which on the face of it entirely unacceptable. According to the petitioner, since she cannot construct the building because of local interference, she wants the municipality to construct the building for her through a Government contractor and she will bear the costs for the same. Alternatively, the petitioner has a prayer which on the face of it entirely unacceptable. According to the petitioner, since she cannot construct the building because of local interference, she wants the municipality to construct the building for her through a Government contractor and she will bear the costs for the same. The nature of the prayer of being such, no detailed observation is called for except its rejection at the threshold. The writ petition is dismissed. There shall be no order as to costs. Urgent photostat certified copy of this order, if applied for, be supplied to the parties at an early date.” 3. Even a bare perusal of the order reveals that cogent reasons have been supplied by the learned Single Judge in order to justify non-interference by the writ Court in the facts and circumstances of the case. This Court does not find any justifiable reason as to why the order of the learned Single Judge would warrant an interference in an Intra-Court Appeal especially when the fact situation reveals that the petitioner was originally allotted the plot of land-in-question as far back as in the year 1968 and on one pretext or the other did not complete the construction for more than 45 years, even after a two-year extension of time was granted by the Estate Manager, Kalyani, in terms of an earlier order passed by the writ Court, with a direction upon the appellant/writ petitioner to start construction of the proposed building immediately and to complete the construction by 30th June, 2015. The appellant/writ petition failed to do so and instead approached the writ Court in another round of litigation just three weeks before the expiry of the time-frame of two years as stipulated by the Estate Manager, Kalyani. The discretionary jurisdiction of the writ Court cannot be exercised in such a fact situation and the learned Single Judge has rightly refused to exercise such discretion. 4. For reasons stated above, this Court does not find any merit in the appeal which is liable to be dismissed along with the application for stay and are accordingly dismissed. 5. The discretionary jurisdiction of the writ Court cannot be exercised in such a fact situation and the learned Single Judge has rightly refused to exercise such discretion. 4. For reasons stated above, this Court does not find any merit in the appeal which is liable to be dismissed along with the application for stay and are accordingly dismissed. 5. This Court, however, makes it clear that dismissal of the writ petition by the learned Single Judge shall not cause any prejudice to the appellant/writ petitioner in the event she seeks a final extension before the Estate Manager, Kalyani, in order to complete construction of the building as a last chance within the shortest possible time and within a specified time period. It is also made clear that it will be purely within discretionary realms of the Estate Manager, Kalyani, to take a decision in respect of such prayer if made by the appellant/writ petitioner. 6. Urgent photostat certified copy of this order, if applied for, be given to the learned advocates for the parties.