Suparna Bhattacharya v. Rajpur-Sonarpur Municipality
2019-07-05
ARINDAM MUKHERJEE, BISWANATH SOMADDER
body2019
DigiLaw.ai
JUDGMENT : Arindam Mukherjee, J. The appeal is at the instance of the writ petitioner. The appellant/writ petitioner has challenged an order dated 28th June, 2018 by which the writ petition was dismissed. The respondent No.1 is Rajpur-Sonarpur Municipality and respondent No.2 is its Administrator. The respondent No.3 is the owner of an adjacent premises to that of the appellant/writ petitioner. 2. The appellant/writ petitioner says that the premises of the respondent No.3 is on the western side of the premises of the appellant/writ petitioner. The premises of the appellant/writ petitioner's mother is on the northern side of the premises of the appellant/writ petitioner. The premises of the appellant/writ petitioner and that of her mother shares the entire common boundary on their western side with the premises of the respondent no.3 that is to say the premises of the appellant/writ petitioner partly shares a common boundary with the premises of the respondent No.3 on its western side. 3. The appellant/writ petitioner had approached this Court by filing a writ petition being WP 22554(W) of 2010 (Suparna Bhattacharya Vs. Rajpur-Sonarpur Municipality & Ors.) complaining of the illegal construction said to have been made by the respondent No.3 at his premises in the nature of not leaving mandatory side open spaces, raising a floor without sanction plan and the failure on the part of the Municipality to prevent such illegal and unauthorised construction. The said writ petition was dismissed by an order dated 25th June, 2014 with liberty to the appellant/writ petitioner to move a fresh on the self-same cause of action after making a fresh representation. Subsequently another writ petition was filed by the appellant / writ petitioner being WP No.25137(W) of 2014 (Suparna Bhattacharya Vs. Rajpur-Sonarpur Municipality & Ors.) pursuant to the earlier leave. The second writ petition was disposed of by an order on 4th September, 2014 directing the competent authority of Rajpur-Sonarpur Municipality to dispose of a representation made by the appellant/writ petitioner on June 26, 2014 within a period of one month after giving an opportunity of hearing to the writ petitioner and respondent No.3 or their respective representatives. It will also appear from the said order that the appellant/writ petitioner had filed a civil suit being suit No.161 of 2012 before the Court of the learned Civil Judge (Junior Division), 2nd Court at Baruipur in which an order of status quo was passed.
It will also appear from the said order that the appellant/writ petitioner had filed a civil suit being suit No.161 of 2012 before the Court of the learned Civil Judge (Junior Division), 2nd Court at Baruipur in which an order of status quo was passed. The relevant portion of the order dated 4th September, 2014, is reproduced hereunder:- "It is submitted by the learned counsel appearing on behalf of the respondent no.3, on instruction that a Civil Suit bearing Suit No.161 of 2012 is pending before the Court of learned Civil Judge (Jr. Divn.), 2nd Court at Baruipur. On instruction, it is further submitted that in view of the order of status quo, no further construction is raised by the respondent no.3 in the above premises. Having heard the learned counsel appearing for the respective parties as also after considering the facts and circumstances of the case, I find that the above Suit relates to right and title of the petitioner and the respondent no.3 in respect of the plot of land lying and situated at R.S. Dag No.159, J.L. No.48, Mouza - Kumrakhali, District - South 24-Parganas. The subject matter involved in this writ application is to take necessary steps for restraining the respondent no.3 to raise construction on the above plot of land violating the rights of the petitioner in respect of his adjacent Premises No.1618, Dakshin Kumrakhali, Ward No.27 under the respondent no.1 in accordance with the provisions of the West Bengal Municipal Building Rules 2007. Therefore, the issue involved in this writ application does not relate to the subject matter involved in the above suit. I direct the competent authority of the respondent no.1 to dispose of the above representation of the petitioner by passing a reasoned order in accordance with law within a period of one month after giving opportunity of hearing to the petitioner and the respondent no.3 or their respective representatives. Let it be made clear that the respondent authority shall not pass any order affecting the issues involved in the above Title Suit No.161 of 2012, which is still pending". 4. The Administrator of Rajpur-Sonarpur Municipality(hereinafter referred to as the Administrator), on 18th October, 2014 communicated a reasoned order dated 15th October, 2014. The said order was subsequently challenged by the appellant/writ petitioner by filing another writ petition being WP 34093(W) of 2014 (Suparna Bhattacharya Vs. Rajpur-Sonarpur Municipality & Ors.).
4. The Administrator of Rajpur-Sonarpur Municipality(hereinafter referred to as the Administrator), on 18th October, 2014 communicated a reasoned order dated 15th October, 2014. The said order was subsequently challenged by the appellant/writ petitioner by filing another writ petition being WP 34093(W) of 2014 (Suparna Bhattacharya Vs. Rajpur-Sonarpur Municipality & Ors.). The said third writ petition was dismissed by an order dated 28th June, 2018 being the order impugned in the instant appeal. 5. After going through the order impugned, we notice no palpable illegality or perversity. However, to bring to an end to the successive writ petitions being filed by the appellant/writ petitioner, Suparna Bhattacharya on the issue as to illegal and unauthorised construction said to have been made by the respondent No.3, we heard the appeal after allowing the respondent No.3 to file an affidavit and the Municipality a report in the form of an affidavit as to the allegations made by the appellant/writ petitioner. The appellant/writ petitioner has filed an affidavit-in-reply against the affidavit filed on behalf of the respondent No.3 and an exception to the report in the form of an affidavit filed by the respondent Municipality. We have considered those also. 6. The allegation of the appellant/writ petitioner is that the appellant/writ petitioner was gifted the premises No.1618, Dakshin Kumrakhali in ward No.27 of Rajpur-Sonarpur Municipality by her mother. The said premises comprised of land and structure situate thereat. The appellant/writ petitioner got a plan sanctioned for making further construction including construction of an upper storey over the existing ground floor structure. The appellant/writ petitioner, however, could construct only a septic tank outside the constructed area and a bath room within the constructed area and obtained occupancy certificate from the concerned Municipality. The appellant/writ petitioner further alleges that on the western side of her and her mother's premises, there existed a land with 7 feet frontage. Immediately thereafter was a land with 19 feet frontage and then another plot of land with 8 feet frontage. The respondent No.3 by two registered deeds respectively dated 14th February, 2001 and 14th August, 2001, first purchased the plot of land with 19 feet frontage and thereafter the plot of land with 7 feet frontage. The said two plots of land were never amalgamated but the respondent No.3 proceeded to make construction treating two separate plots as a single plot of land.
The said two plots of land were never amalgamated but the respondent No.3 proceeded to make construction treating two separate plots as a single plot of land. The respondent No.3 obtained sanction for G+1 storey building but constructed a G+2 storey and that too without leaving the mandatory side open spaces. The respondent No.3 also attempted to encroach upon the appellant/petitioner's property and as such the petitioner had to file a civil suit being title suit No.161 of 2012 wherein an order of status-quo was passed as stated hereinabove. 7. The said order of status-quo, however, according to the respondent No.3 has been vacated on 17th November, 2015. 8. The records reveal that prior to the order of status-quo being vacated the Administrator in terms of the order passed by this Court on 4th September, 2014 had heard the parties and disposed of the representations of the appellant/writ petitioner. The order of the Administrator was also challenged prior to the order of status quo being vacated and as such in the writ petition being WP No.34093(W) of 2014 wherefrom the order impugned emanates the appellant/writ petitioner could not have mentioned about the vacating the order of status-quo. The said writ petition, however, remained pending till 28th June, 2018 when the same was dismissed by the order impugned. 9. During the interregnum, the respondent No.3 filed his affidavit-in opposition wherein the fact was stated. The appellant/writ petitioner filed her affidavit-in-reply to the affidavit used by the respondent No.3. In the said affidavit-in-reply, the appellant/writ petitioner did not even dispute that the order of status quo was vacated on 17th November, 2015. This goes on to show that the statement made by the respondent No.3 to this effect remained uncontroverted. The stay application filed in the appeal, however, does not state that the order of status-quo had been vacated but alleges that there was an order of status-quo passed in title suit. The statement as to the order being vacated ought to have been there in view of the specific recording in the order dated 4th September, 2014 in terms whereof the Administrator disposed of the complaint of the appellant/writ petitioner.
The statement as to the order being vacated ought to have been there in view of the specific recording in the order dated 4th September, 2014 in terms whereof the Administrator disposed of the complaint of the appellant/writ petitioner. The status quo order being vacated has a very important bearing in the issue as it is found from the order of the Administrator that the issue of raising of an additional floor by the respondent No.3 for which he had submitted a revised plan could not be gone into by the Administrator or the Municipal authorities in view of the order of status-quo and the order of 4th September, 2014 passed by this Court taking note of the said order. This left one issue raised by the appellant/writ petitioner as to the construction of second floor by the respondent No.3 without a sanction plan, undecided as will be evident from the order of the Administrator. 10. Now coming to the order of the Administrator, Rajpur-Sonarpur Municipality, we find that on 11th October, 2014, the Sub-Assistant Engineer (PWD), Rajpur-Sonarpur Municipality has physically made inspection of the building situate at the premises of the respondent No.3. During such inspection, the said Sub-Assistant Engineer had considered the sanctioned building plan of the respondent No.3 and found that the side open spaces left by the respondent No.3 are more or less according to the sanctioned plan. The measurements have been quoted and reflected in the order of the Administrator. Copy of this report was given to the appellant/writ petitioner. The appellant/writ petitioner was also given inspection of the title deeds of the respondent No.3. The appellant/writ petitioner also verified the amalgamation and mutation certificate of the respondent No.3 and was heard through her advocate. Thus there is no violation of the principles of natural Justice. After considering all these materials and hearing the appellant/writ petitioner and the respondent No.3 represented by their respective advocates, the Administrator passed a reasoned order. In the absence of the appellant/writ petitioner being able to demonstrate clearly that the report of the Sub-Assistant Engineer (PWD) of the Municipality is vitiated, the report remains. The appellant/writ petitioner has been unable to demonstrate that the report is perverse. The issue as to the said open space, therefore, is no more open for challenge. 11.
In the absence of the appellant/writ petitioner being able to demonstrate clearly that the report of the Sub-Assistant Engineer (PWD) of the Municipality is vitiated, the report remains. The appellant/writ petitioner has been unable to demonstrate that the report is perverse. The issue as to the said open space, therefore, is no more open for challenge. 11. The Administrator also noted that so far as the alleged unauthorised construction said to have been made by the respondent No.3 on the second floor of the building is concerned, a revised plan has been submitted by the respondent No.3. However, no decision as to the said revised plan could be taken in view of the order of status-quo passed in the civil suit and the direction given by this Hon'ble Court in its order dated 4th September, 2014. 12. The learned Single Judge is perfectly justified in holding that the writ court does not operate as an Appellate Authority against the order passed by the Municipal Authority while disposing of a representation after hearing the parties. The learned Single Judge was also correct while holding that the writ court need not reappraise the findings as an Appellate Authority and substitute its own findings with that contained in the order under challenge, in absence of any perversity. 13. The writ court generally interferes with the orders of the authority only if it notices perversity or palpable infirmity apparent on bare perusal of the order of the authority or in a case where the authority concern has exceeded its direction. Nothing has been noticed by the Single Judge and also by us when we have independently considered the order of the Administrator to that effect. The order of the Administrator, therefore, requires no interference. 14. So far as the allegation as to the illegal and unauthorised construction on the second floor of building of the respondent No.3 is concerned, as will appear from the order of the Administrator of Rajpur-Sonarpur Municipality, the Municipal Authorities also could not take a decision as to the revised plan submitted by the respondent No.3 in view of the order of status-quo passed in the civil suit and the Administrator for the specific direction given by this Court in the order dated 4th September, 2014 could not take up the issue. 15. The status-quo order, as we notice from the record, has been vacated.
15. The status-quo order, as we notice from the record, has been vacated. The revised plan also cannot be an issue in the Civil Suit. There is as such no embargo on the Municipal Authority to consider the revised plan submitted by the respondent No.3. 16. The concerned authority of Rajpur-Sonarpur Municipality is, therefore, directed to consider the revised plan submitted by the respondent No.3 and pass necessary decision in respect thereof after hearing the parties preferably within a period of four weeks from the date of communication of this order but not later than six weeks. The decision should be a reasoned one and shall be communicated to the parties immediately on being passed. 17. The respondent No.3 has also alleged of unauthorised construction by the appellant/petitioner. The respondent No.3 has neither filed any writ petition nor has challenged the order passed in the writ petition. The cause of action in the writ petition is the illegal construction said to have been made by the respondent No.3. In such circumstances passing any order at the instance of the respondent No.3 against the appellant/petitioner in her litigation does not appear. The respondent No.3 is free to agitate the same independently, if so advised. 18. The appeal is accordingly disposed of in terms of the discussion and observations as made hereinabove. There shall, however, be no order as to cost. Urgent photostat certified copy of this judgment and order, if applied for, be supplied to the parties on priority basis.