Dipak Kumar Bhattacharyya vs State Of Assam And Ors

Heard Mr. A.D. Choudhury, learned counsel for the petitioner. Also heard Ms. M. Bhattacharjee, learned Additional Senior Government Advocate

appearing for the respondents No.1 and 4. It is stated that the elected body of the Nalbari Municipal Board is not functioning at present and the Board

is being managed by the Executive Officer appointed by the Govt. of Assam. Also heard Mr. B.K. Das, learned counsel appearing for the respondent

No. 5.

Respondent No.6 need not be represented as the elected chairman is presently not holding the office. It is stated that Respondent No.7 Sri Sanjib

Kumar Bora, being the Executive Officer, is also being represented by Ms. M. Bhattacharjee, learned Additional Senior Government Advocate.

The petitioner along with his mother Hemlata Devi and his brother Ashim Kumar Bhattacharya are the owner and possessor of a plot of land

bearing Dag No.222 and K.P. Patta No.207 under Mouza Khata situated in the Nalbari town, which they inherited from their predecessor in interest

namely Rabindra Nath Sarma.

The petitioners have their residential premises on the aforesaid plot of land. The respondent No.5 who is sharing the eastern boundary with the land

of the petitioner had started the construction of her G+2 RCC building over her plot of land. The writ petitioner had raised an allegation that in

constructing the G+2 RCC building, the respondent No.5 had violated some requirements of the NOC/permission granted to her by the Nalbari

Municipal Board.

The said dispute between the writ petitioner and the respondent No.5 had led to WP(C) 6831/2019, wherein, an order dated 25.09.2019 was passed

directing the Nalbari Municipal Board to examine the matter as regards the allegation of violation of the building norms by the respondent no. 5.

According to the petitioner, pursuant thereto, although a hearing was shown to have given by the Nalbari Municipal Board on 20.11.2019, but in fact,

no such effective hearing was given, and the petitioner was intimated that the direction to stop construction work against the respondent No.5 had

been temporarily withdrawn, but in doing so, the core issue regarding the violation of the building norms by the respondent No. 5 was not decided.

Without going into the merits of the rival claims between the writ petitioner and the respondent No.5 and without expressing any view on the same

and neither expressing any view on the earlier hearing given by the Nalbari Municipal Board, we dispose of this petition, as agreed by the learned

counsel for the parties, by requiring the Nalbari Municipal Board to hear the matter afresh between the writ petitioner and the respondent No.5. In

doing so, the Nalbari Municipal Board shall give a hearing to both the writ petitioner and the respondent No.5 and allow them to produce any material

and make any submission as may be advised in order to substantiate their respective claims. For the purpose, the Nalbari Municipal Board shall

intimate the writ petitioner and the respondent No.5 of the date and time of the hearing to be conducted. As an allegation has been raised that in the

earlier round of hearing, the matter was not fairly dealt with by the Nalbari Municipal Board and as the Executive Officer Mr. Sanjib Kumar Bora

was also involved in the said hearing, we provide that for the fairness between the parties, the Town Planner of Nalbari Municipal Board shall conduct

the hearing and pass a reasoned order on the respective claims made by the writ petitioner and the respondent No.5. In doing so, the Town Planner

shall also cause the respective lands of the writ petitioner and the respondent No.5 to be measured so as to arrive at a definite conclusion whether

there is any violation of the building norms by the respondent No.5. After doing the needful, the Town Planner shall pass a reasoned detailed order on

the matter, including a categorical finding as to whether the respondent No.5 had violated any building norms/ rules and communicate the order to the

respective parties.

The requirement of giving the hearing be done within a period of 15 days from the date of receipt of the certified copy of this order. Till the

reasoned order is passed, further construction by the respondent No.5 be not allowed by the Nalbari Municipal Board.

The further aspect as to whether the respondent No.5 should be allowed to proceed with the construction shall be subject to the reasoned order to

be passed by the Nalbari Municipal Board.

Writ petition disposed of accordingly. Interim order made subject to the provisions of this order.