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2018 DIGILAW 802 (CAL)

Minoti Halder v. Swapna Barat

2018-11-19

ARINDAM MUKHERJEE, BISWANATH SOMADDER

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JUDGMENT : BISWANATH SOMADDER, J. 1. By consent of the parties, the appeal is treated as on day’s list and taken up for consideration along with the application for stay. 2. The instant appeal arises out of a judgment and order dated 23rd August, 2018, passed by a learned Single Judge in W. P. 22386 (W) of 2016 (Smt. Swapna Barat vs. The State of West Bengal & Ors.). 3. By the impugned judgment and order, a writ petition filed by Smt. Swapna Barat was disposed of on the following terms: - “Report as called for by the order dated July 5, 2018 filed in Court be taken on record. Learned advocate appearing for the Municipality makes over a copy of such report to the learned advocate appearing for the petitioner in Court. The report states that, there is a ‘Doba’ on L.R. Dag No. 149, Mouza - Balia, J.L. No. 46, Police Station - Sonarpur. The report also speaks of a First Information Report being lodged. The Executive Officer of a concerned Municipality is the competent authority under the West Bengal Inland Fisheries Act, 1984 in terms of the notification dated July 20, 2017. The plot of land in question is lying and situate within the jurisdiction of Rajpur-Sonarpur Municipality. Since, there is ‘Doba’ on the plot concerned, the Executive Officer of the concerned Municipality will take expeditious measures under the West Bengal Inland Fisheries Act, 1984 in ensuing that, the plot is restored to its former description. Since, the concerned plot is recorded as ‘Doba’ in the records of rights, the Municipality will visit its sanction granted in respect of such plot concerned. It will take expeditious measures for the purpose of facilitating restoration of the plot to the description as appearing in the record of rights. It will take appropriate measures as directed by the competent authority under the West Bengal Inland Fisheries Act, 1984 with regard to the plot of land concerned. It is expected that, the entire exercise is completed within a period of eight weeks from the date of communication of this order. W.P. No. 22386 (W) of 2016 is disposed of.” 4. Now, the present appeal has been preferred by the private respondent no. 5 in the writ proceeding, namely, Minoti Halder. 5. The principal contention of the learned advocate representing the appellant/private respondent no. W.P. No. 22386 (W) of 2016 is disposed of.” 4. Now, the present appeal has been preferred by the private respondent no. 5 in the writ proceeding, namely, Minoti Halder. 5. The principal contention of the learned advocate representing the appellant/private respondent no. 5 in the writ proceeding is that the learned Single Judge had failed to take into consideration a Partition Suit which is pending between his client on one hand and the respondent no.1/writ petitioner on the other. He further contends that the learned Single Judge did not take into consideration an order passed by another Bench of this Court sitting in its Civil Revisional Jurisdiction being a judgment and order dated 1st September, 2016, rendered in C.O. 3284 of 2016. 6. Having perused the records of the instant case, we are of the view that the Partition Suit as well as the order dated 1st September, 2016, passed in C.O. 3284 of 2016 does not affect the directions given by the Court in the impugned judgment and order. The reason is, the issue raised before the learned Single Judge was essentially in respect of a building plan which was sanctioned by the concerned Municipality, namely, Rajpur Sonarpur Municipality. The writs in the nature of mandamus which were prayed for by the writ petitioner being prayers a, b, and c, are required to be noticed. For such purpose, the same is setout here in below: - a) A Writ in the nature of Mandamus commanding the respondent Municipal authorities to set aside, cancel and/or quash the said building plan being No.1230/RB/01/330 dated 21.09.2012 granted in favour of the private respondent; b) A Writ in the nature of Mandamus commanding the respondent authorities to demolish the unauthorised construction made by the private respondent over R.S. Dag No. 194, Mouza Balia, J. L. No. 46, R. S. Khatian No. 72, P.S. Sonarpur, District : 24-Parganas (South), Ward No. 1, Holding NO. 475, under Rajpur Sonarpur Municipality; c) A Writ in the nature of Mandamus commanding the respondent authorities to consider the representation dated 27.01.2016 made by your petitioner to the respondent no. 3 and to take a decision in this regard. 7. 475, under Rajpur Sonarpur Municipality; c) A Writ in the nature of Mandamus commanding the respondent authorities to consider the representation dated 27.01.2016 made by your petitioner to the respondent no. 3 and to take a decision in this regard. 7. The learned Single Judge - in the backdrop of the facts of the instant case which was primarily with regard to seeking the writ Court’s intervention in respect of unauthorised construction - had proceeded to pass the impugned judgment and order dated 23rd August, 2018. As such, we do not find any justifiable reason to interfere with the same. 8. That apart and in any event, in an Intra-Court Mandamus Appeal interference is usually warranted when palpable infirmities or perversities are noticed on a plain reading of the impugned judgment and order. We do not notice any such palpable infirmity or perversity on a plain reading of the impugned judgment and order. Moreover, the impugned judgment and order is supported with cogent and justifiable reasons. 9. For reasons stated above, the appeal and the application for stay are, therefore, liable to be dismissed and stand accordingly dismissed. 10. Urgent Photostat certified copy of this order, if applied for, be given to the learned advocates for the parties. Arindam Mukherjee, J.