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2024 DIGILAW 1368 (CAL)

Kanika Biswas v. State of West Bengal

2024-08-02

PARTHA SARATHI SEN

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JUDGMENT : Partha Sarathi Sen, J. 1. In this writ petition the writ petitioner has prayed for issuance of a writ of mandamus upon the respondents to take steps for cancellation of the sanctioned building plan as granted in favour of the private respondent no.11 and to demolish the construction of the private respondents at plot no.342, JL no.79, Mauja Jalaghata, Block and P.S Singur, District Hooghly. 2. It is the case of the writ petitioner that the private respondents more specifically respondents nos.10 and 11 are the owners of an adjacent land of the property of the writ petitioner particulars of which is given in paragraph 2 of the writ petition. It has been alleged in the writ petition that the private respondent nos.10 and 11 started illegal construction over such adjacent plot of land violating the provisions of West Bengal Panchayat Act, 1973 (hereinafter referred to as the said ‘Act’) and also the provisions of the West Bengal Panchayat (Gram Panchayat Administration) Rules, 2004 (hereinafter referred to as the said ‘Rules’). 3. It is the further grievance of the writ petitioner that the writ petitioner has started using the said building for commercial exploitation by setting up a diagnostic centre for which the writ petitioner filed WP no.14269 (W) of 2013 praying for issuing of appropriate writ prohibiting the private respondents to carry on the said business in the locality. It is the further grievance of the petitioner that it has been noticed that the private respondent nos.10 and 11 have constructed their building without leaving the statutory side space and further the floor area ratio of the said building has not been maintained. 4. In course of his submission Mr. Banerjee, learned advocate for the writ petitioner at the very outset draws attention of this Court to page nos. 20 and 31 of the writ petition. It is submitted that from the said two piece of papers it would reveal that the illegal activities of the respondent nos. 10 and 11 were brought to the notice of the respondent no.5 i.e. the Pradhan, Singur Gram Panchayat I, but in vain. 5. Mr. Banerjee, in course of his submission further draws attention of this court to Rule 27 and Rule 31 of the said Rules. It is submitted by Mr. 10 and 11 were brought to the notice of the respondent no.5 i.e. the Pradhan, Singur Gram Panchayat I, but in vain. 5. Mr. Banerjee, in course of his submission further draws attention of this court to Rule 27 and Rule 31 of the said Rules. It is submitted by Mr. Banerjee, learned advocate for the writ petitioner that Rule 31 of the said Rules postulates that a Gram Panchayat shall not grant permission for construction of a building for commercial purpose on a road or on an approach passage having width less than 5 meters (equivalent to 16.40 ft approximately). It is further submitted that Rule 27(1-A) of the said Rules further postulates that prior to according permission for construction of a new structure of height of more than 6.5 meters (21.32 ft approximately) a Gram Panchayat is under an obligation to get the building plan vetted by the Panchayat Samity or by the Zila Parisad having jurisdiction. 6. At this juncture Mr. Banerjee, learned advocate for the writ petitioner draws attention of this Court to Annexure R7 at page no.18 of the affidavit-in-opposition as filed by the respondents which is a photo copy of the sanctioned plan dated 16.12.2009 of a commercial cum residential four storied building belonging to the private respondent nos.10 and 11. It is submitted that from the said plan it would reveal that such sanction of the building in question of the respondent nos.10 and 11 was granted which is situated on a 6 ft width common passage which is much less than 5 meters (16.40 ft approximately). It is thus submitted that from the said document it would reveal that the provision of Rule 31 of the said Rules has been violated by the private respondent nos.10 and 11 in connivance with respondent no.5 i.e. Pradhan, Singur Gram Panchayat I. 7. Mr. Banerjee, learned advocate for the writ petitioner further draws attention of this Court to page nos.18, 19 and 20 of the affidavit-in-opposition being the successive revised sanctioned plans dated 16.12.2009, 23.05.2011 and 05.12.2023. Mr. Banerjee, learned advocate for the writ petitioner further draws attention of this Court to page nos.18, 19 and 20 of the affidavit-in-opposition being the successive revised sanctioned plans dated 16.12.2009, 23.05.2011 and 05.12.2023. It is submitted that from the aforementioned four successive revised sanctioned plans it would reveal that the height of the said building is more than 40 ft (equivalent to 12.19 meters) and therefore the respondent no.5, the Pradhan of Singur Gram Panchayat I had consciously violated the provision of Rule 27 (1-A) of the said Rules in connivance with the private respondent nos. 10 and 11. It is further submitted that while according sanction of the four storied residential cum commercial building the respondent no.5 thought it fit not to get the building plan vetted by the Panchayat Samity or the Zila Parisad for the reason best known to her. 8. In course of his submission, Mr. Banerjee submits further before this Court that after receipt of series of complaints from the writ petitioner the respondent no.5 probably realized her mistake in granting the earlier sanctioned plan in the name of respondent nos. 10 and 11 and thus issued another sanctioned plan in respect of the self same premises on 24.11.2015 after getting the same vetted from the concerned Zila Parisad but with some ulterior motive, the width of the common passage in the front of the said building has been shown as 3.20 meters (equivalent to 10.49 ft approximately) while in the earlier plans the width of the self same road was shown as 6 ft (equivalent to 1.82 meters). In course of his submission Mr. Banerjee, learned advocate for the writ petitioner also draws attention of this Court to the supplementary affidavit as affirmed on 25.04.2018. It is submitted that from page no.12 of the said supplementary affidavit it would reveal that on 13.12.2012 the private respondent no.11 wrote a letter to CMOH, Chinsurah wherein she has categorically stated that her building at plot no. 342, Khatiyan no.831, LR Khatiyan no.3153 and 3154 Mauja Jalaghata, JL 79 P.S Singur, District Hooghly is a four storied building. It is thus submitted by Mr. Banerjee that from the said letter dated 13.12.2012 it thus appears that the four storied residential cum commercial building was constructed prior to issuance of the vetted sanctioned plan dated 23/24.11.2015. 9. 342, Khatiyan no.831, LR Khatiyan no.3153 and 3154 Mauja Jalaghata, JL 79 P.S Singur, District Hooghly is a four storied building. It is thus submitted by Mr. Banerjee that from the said letter dated 13.12.2012 it thus appears that the four storied residential cum commercial building was constructed prior to issuance of the vetted sanctioned plan dated 23/24.11.2015. 9. In order to substantiate the alleged unholy connivance between the respondent no.5, the Pradhan Singur Gram Panchayat I and the private respondent nos. 10 and 11, Mr. Banerjee, again draws attention of this Court to page no.19 of the self same agreement. It is submitted that from the reply letter dated 20.09.2017 as issued by SPIO, Hooghly Zila Parisad it would reveal further that the plan of the building of the respondent nos.10 and 11 was forwarded by the Pradhan of Singur Gram Panchayat I/respondent no.5 on 24.05.2017 and therefore such plan cannot be approved on 23/24.11.2015. It is thus submitted that since respondent nos.10 and 11 in connivance with respondent no.5 has raised the construction of a four storied building in violation of Rule 27 and Rule 31 of the said Rules, an appropriate order may be passed directing the jurisdictional SDO to act as per provision of Section 23 (5) and (6) of the said Act. 10. Per contra, Mr. Chakroborty, learned advocate for the private respondent nos. 10 and 11 draws attention of this Court to the copy of the affidavit-in-opposition of the respondent nos.10 and 11 (which is taken on record on 29.07.2024 in view of the unavailability of the original). It is submitted by Mr. Chakroborty that on the similar cause of action the writ petitioner filed a public interest litigation which was however dismissed for default. It is submitted further in view of the dismissal of the earlier petition the instant writ petition on the self same cause of action is barred under the provision of Order 9 Rule 9 of the Code of Civil Procedure. 11. Drawing attention to page nos. 17,18,19,20 and 21 of the affidavit- in-opposition as affirmed on 23.09.2024 it is submitted that such successive sanctioned plans were obtained by the respondent nos.10 and 11 since the respondent nos.10 and 11 could not complete their four storied building within the validity period the sanctioned plans and there was thus no foul play on the part of the private respondent nos. 10 and 11 in connivance with the respondent no.5, as wrongly alleged. Drawing attention to Section 23 of the said Act vis-a-vis Rules 21, 24, 27 and 31 of the said Rules it is submitted that on conjoint perusal of the aforesaid legislative provisions it would reveal that the jurisdictional SDO is the competent authority to address the grievances of the writ petitioner and thus in view of the availability of alternative remedy this Court must be very slow in exercising its writ jurisdiction by directing an order of demolition as prayed for. 12. Mr. Surajit Basu, learned advocate for the respondent nos. 5 and 6 also submits that it is a fit case for referring the matter before the jurisdictional SDO in terms of provisions of Section 23 of the Panchayat Act. 13. Mr. Suman Basu, learned advocate for the respondent no.8 who appeared through virtual mode in course of his argument candidly submitted that overlooking the relevant provisions of the said Rules and despite issuing several caution, the respondent no.5/Pradhan of Singur Gram Panchayat I went on according permission violating the provisions of Rule 27 of the said Rules. 14. After giving due consideration over the materials as placed before this Court as well as to the respective deliberations of the learned advocates for the contending parties this Court proposes to answer to the issue with regard to the maintainability of the instant writ petition since it has been strenuously argued on behalf of the private respondents that on account of dismissal of the earlier round of litigation by way of PIL the instant writ petition is not maintainable. 15. On comparative study of the contents of the said writ petition being WP 14269 (W) of 2013 and the contents of the instant writ petition, it reveals that the factual matrix as involved in the earlier round of litigation is different from the facts and circumstance of the instant writ petition inasmuch as in the earlier round of litigation the writ petitioner approached this Court seeking prohibitory order against the private respondents in respect of their alleged illegal running of nursing home business in the said building. However in the instant writ petition, the writ petitioner has prayed for cancellation of the sanctioned plan of the premises of the private respondent nos. However in the instant writ petition, the writ petitioner has prayed for cancellation of the sanctioned plan of the premises of the private respondent nos. 10 and 11 with a further prayer for taking appropriate steps for demolition of the same building. This court thus finds that the cause of action in the earlier round of writ petition and the cause of action in the present writ petition is not at all identical and therefore the prohibition under Order 9 Rule 9 of the Code of Civil Procedure has got no role to play in proceeding with the instant writ petition. 16. As discussed supra, it appears to this Court that sufficient materials have been placed before this Court that in plot no. 342, Khatiyan no.831, LR Khatiyan no.3153 and 3154 Mauja Jalaghata, JL 79 P.S Singur, District Hooghly, there exists a four storied building, the owner of which is private respondent nos.10 and 11. Admittedly such building is more than 6.5 meters and prior to the construction of the said building though sanction was taken from the respondent no.5 but the same is violative of Rule 27 since no vetting was obtained from the concerned Zila Parisad and Panchayat Samity. Sufficient materials have been placed that though on 23/24.11.2015 such sanction was renewed after obtaining the vetting of the Panchayat Samity and Zila Parisad but much prior to that, atleast in the year 2012 the said four storied building was in existence. 17. From the aforesaid building plans it reveals that such four storied building is used for residential and commercial purpose and such building has been constructed by the side of a 6 ft (1.82 meter approximately) passage violating the provisions of Rule 31 of the said Rules which says that the minimum width of such road would be 5 meters i.e. 16.402 ft (approximately). 18. From the materials as placed before this Court it reveals further that the respondent no.5 being the Pradhan of Singur Gram Panchayat I knowingly acted contrary to the said Act and the Rules despite such illegality is brought to the notice of the said Pradhan by the writ petitioner on repeated occasions. 18. From the materials as placed before this Court it reveals further that the respondent no.5 being the Pradhan of Singur Gram Panchayat I knowingly acted contrary to the said Act and the Rules despite such illegality is brought to the notice of the said Pradhan by the writ petitioner on repeated occasions. The conduct of the respondent no.5 was also not supported by the learned advocate for the respondent no.8 who candidly submits before this Court that inspite of issuing repeated caution the respondent no.5 did not forward the building plan with the Panchayat Samity or the Zila Parisad for its vetting. 19. In view of such conduct, this Court finds serious laches in the action of the respondent no.5 i.e. Pradhan of Singur Gram Panchayat I since this Court has already come to a finding that the building of the private respondent nos.10 and 11 have been erected in contravention of the provision of Section 23(1) of the said Act. 20. This Court in exercise of its plenary power thus directs the SDO Chandannagar, District Hooghly to initiate an appropriate proceeding under Section 23(5) of the West Bengal Panchayat Act, 1973 within a week from the date of communication of this order against the private respondent nos. 10 and 11 for illegal construction of a four storied residential cum commercial building over plot no. 342, Khatiyan no.831, LR Khatiyan no.3153 and 3154 Mauja Jalaghata, JL 79 P.S Singur, District Hooghly. 21. Both the writ petitioner and the private respondent nos.10 and 11 are directed to appear before the SDO Chandannagar, District Hooghly positively on August 09, 2024 at 12 o’ clock noon along with a server copy of this judgement and the SDO, Chandannagar is directed to act on the server copy of this order. 22. The SDO, Chandannagar, District Hooghly is further directed to give an opportunity of hearing to the petitioner and the private respondent nos.10 and 11 and/or their learned advocates and upon hearing shall pass a reasoned order positively within August 31, 2024. 23. The writ petitioner and the private respondent nos.10 and 11 are directed to submit their email account details with the SDO, Chandannagar, District Hooghly on the first day of their appearance before the SDO, Chandannagar, District Hooghly. 23. The writ petitioner and the private respondent nos.10 and 11 are directed to submit their email account details with the SDO, Chandannagar, District Hooghly on the first day of their appearance before the SDO, Chandannagar, District Hooghly. The SDO, Chandannagar, District Hooghly is directed to communicate the reasoned order to the writ petitioner as well as to the private respondent nos. 10 and 11 through email. 24. It is also made clear that the time limit as fixed by this Court is mandatorily to be observed both by the writ petitioner and the private respondent nos. 10 and 11 as well as by the SDO, Chandannagar, District Hooghly. 25. With the aforesaid observation WPA 326 of 2015 is disposed of. 26. District Magistrate, Hooghly is hereby directed to see that the order as passed by this Court is duly complied with by the SDO, Chandannagar. 27. Department is directed to forward copies of this judgement to the District Magistrate, Hooghly and SDO, Chandannagar for their immediate compliance. 28. Urgent Photostat certified copy of this judgement, if applied for, be given to the parties on completion of usual formalities.