Arup Kumar Ghosh vs State Of West Bengal & Ors

Debangsu Basak, J

A notice dated December 24, 2018 issued by Katwa Municipality is under challenge in the present writ petition.

Learned advocate appearing for the petitioner submits that, the writ petitioner and the Municipality are defendants in a suit for declaration and injunction being Title Suit No.107 of 2016 filed by the private respondent before the Civil Judge, (Junior Division) 1st Court at Katwa, Burdwan.            He draws the attention of the Court to the plaint and its pleadings. He submits that, the Municipality as the defendant filed its written statement therein. The issue of unauthorized construction is an issue in such title suit. Since, the title suit is yet to be decided finally, the Municipality is acting beyond its jurisdiction in issuing the impugned notice.

Learned advocate appearing for the Municipality draws the attention of the Court to the interim order passed in the title suit. He submits that, the Court returned the finding that, the Municipality is the authority having jurisdiction to decide on the issue of unauthorized construction.  None of the parties to the suit preferred any appeal against such a finding.  The Municipality thereafter, issued a notice calling upon the petitioner herein to produce the sanctioned building plan.  The petitioner could not produce such sanctioned building plan. The Municipality thereafter, proceeded to issue the impugned  notice. The Municipality has since invoked the provisions of Section 218 of the West Bengal Municipal Act, 1993.

In the facts of the present case, there is a Civil Suit being, Title Suit No.107 of 2016 pending between the parties. The private respondent is the plaintiff in such suit. As the plaintiff in such suit, the private respondent applied for an interim order of injunction.

The same was refused on contest by the order dated September 26, 2016. By such order, the Court held as follows:

"At the time of hearing of the application for temporary injunction, there is no document before the court to ascertain the fact whether the principal defendant has actually made constructions, if any, without leaving 3 (three) feet vacant land/space as per the Municipal Act/Rules on the northern side of the suit property. At the same time, there is no written objection from the end of pro‐defendant no.5, Commissioners' of Katwa Municipality in respect of the alleged unauthorised constructions. It is settled principle that the municipality is the authority to decide the issue of unauthorised construction in violation of the sanctioned building. The Plaintiffs/Petitioners approached before the municipal authority but did not exhaust such opportunity."

The finding of the Civil Court is binding upon the parties to the suit, till the same is interfered with by a higher forum. At this stage, there is a finding by the Civil Court that, the  Municipality  is  the  authority  to  decide  upon  the  question  of  unauthorized construction. Even otherwise, a Municipality has the authority to decide a question of unauthorized construction under the provisions of Section 218 of the West Bengal Municipal Act, 1993. The Civil Court is another authority which can decide such issue, if, such an issue is made an issue in such suit.

In the facts of the present case, the Civil Court before which, such an issue was sought to be revised is of the view that, the Municipality should decide such issue.

Therefore, the parties are governed by such a decision of the Civil Court.

Pursuant to such order of the Civil Court, the Municipality invoked the provisions of Section 218 of the West Bengal Municipal Act, 1993. I find no infirmity in action of the Municipality in doing so. It is open to the petitioner to participate in such proceedings, in accordance with law. No doubt, the Municipality will afford the private parties an opportunity of hearing in such proceedings.

Learned advocate appearing for the Municipality submits that, the hearing has since been concluded. The petitioner complains of insufficiency of the hearing.

In such circumstances, it would be appropriate to request the Municipality to afford the private parties one more opportunity of hearing.

W. P. No.575 (W) of 2019 is disposed of.

No order as to costs.

Urgent certified website copies of this order, if applied for, be made available to the parties upon compliance of the requisite formalities.