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Judgment
Sahidullah Munshi, J
This writ petition has been filed by Nemai Chandra Kundu and others praying for a writ in the nature of mandamus calling upon the respondent Police
authorities and more specifically the respondent no.11, that is, the Inspector-in-charge of Arambagh Police Station, Hooghly and the Municipal
authorities, that is, the respondent no.1 to forthwith restrain the Executive Engineer (P.W.D.), Hooghly Construction Division at Chinsurah being the
respondent no.4, his men, agents, servants, assigns from continuing with planting forest trees/saplings in front of petitioners’ plots of land and to
nurture the same.
Mr. Basu, appearing for the petitioners, submitted that necessary pleadings have been made by the petitioners in paragraph 34 of the writ petition
which is set out below:-
“34. The plantation programme is illegal. The attitude and action of Mr. Niranjan Bhar, the Assistant Executive Engineer in continuing his mission
of vendetta, illegal threats and nepotism are penal in nature and he may be suitably dealt with for his illegal acts. The said Mr. Bhar has further
threatened in the open that if the saplings are in any way damaged, the petitioners would be proceeded with. The said statement is heinous and it
seems that the said Mr. Bhar has his well tuned mind to involve the petitioners into false cases.â€
In the next paragraph, that is, paragraph 35, the petitioners have alleged about the action of the authorities under West Bengal Highways
Act, 1964 which is set out below:-
“35. The West Bengal Highways act, 1964 bit legislation and the same for the maintenance and control of, prevention of encroachments thereon
and a removal of encroachments therefrom, and matters connected therewith. Nowhere in the said act doesn’t permit for plantation of saplings of
forest plants which prevents obstruction of views and prevents use of the highway. Forest tree saplings cannot be granted under any circumstances
and those forming tall trees but in the present case the same has been done so that the petitioner business can be destroyed being not in view of the
public and the roots would soon spread underneath the building and destroy the plaint of the said building. It is strange as to how an engineer can
become a forest officer while discharging his duties under the provisions of the West Bengal highways Act.â€
In the writ petition the petitioner has annexed a letter dated 14th June, 2017 which is a notice to remove encroachment. In absence of any prayer in
the writ petition and, although, no supporting pleading has been made with regard to such alleged encroachment upon the petitioner’s land, the
petitioner has annexed a copy of the letter dated 14th June, 2017 which is a notice to remove encroachment being Annexure ‘P1’ to the writ
petition.
While the writ petition was moved on 21st December, 2017, Mr. Basu, appearing for the writ petitioners, drawing attention of the Court to the
aforesaid notice dated 14th June, 2017 submitted that the constructions on the petitioner’s land are being demolished by the P.W.D. authorities and
thereafter, the said authorities were making plantation on the petitioner’s land as pointed out in paragraphs 34 and 35 of the writ petition. On the
basis of the urgency and the gravity of the matter this Court, by order dated 21st December, 2017, appointed a Special Officer to make a physical
inspection of the land in question where the State authorities had allegedly made demolition of the petitioner’s constructions illegally on the strength
of the notice dated 14th June, 2017 and where the Executive Engineer was making plantation of saplings of forest plants. This Court also passed an
interim order to the effect :
“… Till such time the report comes, the Assistant Engineer, PWD, Hooghly Construction Sub-Division is restrained from acting any further on the
basis of notice dated 14th June, 2017 so far the petitioners’ plot of land is in question being Dag 239 and 229 and J.L. No.34 Mouza and P.S.
Arambagh, District Hooghly.â€
Learned Special Officer filed a report in Court and copies have been circulated to the appearing Counsels for the State and the Municipality.
On a prima facie satisfaction, this Court passed the interim order to protect the interest of the parties. After hearing the parties at length it was held
that writ petition could be disposed of even without calling for any affidavits. Accordingly, the writ petition was fixed for hearing on 25th January, 2018
as ‘Motion’. In pursuance of such observation the writ petition was taken up for hearing.
While hearing Mr. Basu it transpired that another writ petition being W.P. 1426(W) of 2017 filed on 17th January, 2017, is pending before this
Hon’ble Court with some applications made therein. In one such application being C.A.N.5640 of 2017 the writ petitioners Nemai Chandra Kundu
and others have also challenged the above-mentioned notice dated 14th June, 2017 which is a notice to remove encroachment. Mr. Basu, appearing
for the petitioners, submits that the said C.A.N.5640 of 2017 was filed with a prayer for quashing the notice to remove encroachment dated 14th June,
2017 which is at page 71 of the said application. Another application being C.A.N.6774 of 2017 has also been filed by the writ petitioners whereby
they prayed for an enquiry and demanded damages wherein the said notice dated 14th June, 2017 being Annexure ‘P1’ is appearing at page 21.
On consideration of the submission of Mr. Basu and the above-referred applications filed in connection with W.P.1426(W) of 2017, particularly that
the said writ petition is pending and further that the Hon’ble Division Bench, in an appeal filed from an interlocutory order passed in the said writ
petition, gave liberty to the petitioners to file appropriate application in future, this Court inclines not to make any observation with regard to the said
notice dated 14th June, 2017, issued under the West Bengal Highways Act, 1964. Therefore, the order which was passed in this writ petition on 21st
December, 2017, staying the operation of the notice dated 14th June, 2017, cannot be continued. It is made clear that in this writ petition, neither is
there any pleading, nor is there any prayer with regard to the said notice for removal of encroachment.
It is now, therefore, required to be decided whether the only prayer in this writ petition regarding plantation of saplings and apprehended danger for
causing damage to the petitioners’ constructions and/or future construction on his land could be substantiated by the petitioner from the materials
on record.
According to Mr. Basu, the materials brought on record would definitely reflect that he has acquired ownership in respect of the plots mentioned in the
notice for removal of encroachment. Since the notice for removal of encroachment is not the subject-matter of challenge in this writ petition, this
Court refrains it from making any observation either with regard to the said notice, or the land mentioned under the said notice as also the rights and/or
authority of the petitioner to use and occupy those plots of land as mentioned in the said notice of encroachment. The report which has been filed by
the Special Officer, describes the alleged action of the State respondents and the Municipality. The said report nowhere indicates that any plantation
of sapling has been made on the land in question. Learned Special Officer has mentioned those plot numbers in his report and he has taken photograph
of the land which is in dispute as pointed out by the petitioner during inspection. The photograph annexed to the report does not show that there is any
plantation on the land in question rather it is seen that several cars have been parked on the vacant land. Without going into the question of legality
and/or authority of the respondents with regard to the plantation under challenge in the writ petition this Court holds that since the Special
Officer’s report does not prove the allegation of the petitioner, prayer (a) of the writ petition fails. Consequently, the other prayers based on
prayer (a) and/or consequential thereto cannot also be entertained and, accordingly, rejected.
Mr. Basu, however, submits that during the pendency of the writ petition certain development took place and he, accordingly, filed an application being
C.A.N.10034 of 2017 annexing therewith a notice dated 23rd October, 2017 being Annexure ‘P14’ to the said application. On perusal of the
said notice it appears that the same is a show-cause notice but nothing has been submitted as to whether the petitioner has made any effort to reply to
the said show-cause notice till date. Mr. Basu, appearing for the petitioners, has drawn attention of this Court to another notice dated 26th December,
2017 whereby the Executive Officer, Arambagh Municipality, directed the petitioner no.1 not to construct any building over the land on the plea that
he is not the owner thereof and that some objections were received by the Municipality disputing the petitioner’s ownership over the land in
question in respect of which earlier plans were said to have been issued.
Mr. Suddhadev Adak, appearing for the Municipality, submits that, although, Municipality has been made a party in the writ proceeding, but from the
pleadings it does not appear that any case has been made out against the Municipality. The notices which have been annexed to the writ petition, do
not also disclose any cause of action against the Municipality. Therefore, according to this Court, the writ petition is not maintainable against the
Municipality.
Mr. De, learned Counsel appearing for the State, submits that writ petition itself is not maintainable, firstly, because the notice dated 14th June, 2017 is
the subject-matter of another writ petition being
W.P.1426(W) of 2017 and when the Hon’ble Division Bench gave the petitioner liberty to raise his grievance before the Court in the said pending
writ petition, there is no reason for taking out a separate writ petition on the selfsame cause of action. Therefore, he submits that on this plea alone the
writ petition is liable to be dismissed. Mr. De submits that the writ petition, in fact, has become infructuous having regard to the submission made by
the petitioner that the said construction situated on the land in respect of which the aforesaid notice dated 14th June, 2017 has been issued, has already
been demolished. Mr. De further submits that the notice annexed to the application being C.A.N.186 of 2018 can also not be relied upon without
making amendment of the writ petition.
After considering the submissions made on behalf of the parties this Court holds that in support of prayer (a) the only pleading that has been made by
the writ petitioner is that of plantation of saplings on his land which could not be substantiated even after consideration of the learned Special
Officer’s report and, therefore, prayer (a) cannot be granted. Only substance which makes a basis for interference of this Court is the notice
dated 26th December, 2017 by which the alleged sanction plan has been sought to be revoked by the Municipality. Although, Mr. De is right in making
the submission that without making amendment of the writ petition simply by filing an application the petitioners cannot seek quashing of the notice
dated 26th December,
2017 which according to him, would be misjoinder of causes of action. Although, Civil Procedure Code is not applicable in writ proceedings, yet, the
principles apply. The notice dated 26th December, 2017 at page 18 of C.A.N.186 of 2018 gives some cause of action for the writ petitioner for which
he is entitled to get some relief. The said notice is opposed to the principles of natural justice and, therefore, the writ petitioner at least should get an
opportunity to place his case before the Municipal authority and, accordingly, this writ petition along with all connected applications stand disposed of
with the direction that the Executive Officer, Arambagh Municipality shall give an opportunity of hearing to the petitioner on the question of the
restriction upon the petitioner to make construction on the basis of the plan said to have been issued in his favour. Such hearing should be given within
a period of eight weeks from the date of communication of this order. The petitioner is directed to communicate this order to the Municipality within a
week from obtaining a certified copy of this order.
Since Arambagh Municipality had already issued a notice dated 23rd October, 2017 as disclosed in C.A.N.10034 of 2017 whereby the petitioner was
directed to show cause which he could not do because of the pendency of the writ petition, he is given liberty to file a reply to such show-cause notice
to the Municipality within a period of two weeks from date.
Urgent Photostat certified copy of this judgment, if applied for, be delivered to the learned counsel for the respective parties upon compliance of all
usual formalities.