Siba Prasad Basu And ORS. v. The State Of West Bengal And ORS.

CALCUTTA HIGH COURT IN THE CIRCUIT BENCH AT JALPAIGURI 20.02.2024 adeb WPA 201 of 2024 Sri Siba Prasad Basu & Ors.

Vs.

The State of West Bengal & Ors.

Mr. Bapi Sarkar Mr. Tanmoy Sinha Sarkar ...for the petitioner Mr. Abhilash Mittal ...for the respondent nos. 7 & 8 Mr. Deborshi Dhar ....for the Corporation Mr. Subir Kumar Saha Ms. Patralekha Chowdhury ...for the State Affidavit-of-service filed on behalf petitioner is taken on record.

The writ petition was taken up for consideration on 13th February, 2024 when this Court adjourned the hearing since respondent nos. 6 to 8 were not represented.

Court directed representing the petitioners to serve notice upon the private respondents and accordingly notice has been served upon respondent nos. 7 and 8 and those respondents are represented today.

However, respondent no. 6 could not be served as it appears from the tracking report annexed to the affidavit-ofservice filed today wherein it is reported that

"addressee cannot be located". Since respondent no. 6 received service of notice relating to the writ petition previously as it appears from the affidavitof-service which was filed on 13th February, 2024 this Court has decided to hear the writ petition on merit.

The representing petitioners who are the flat owners of one "Madhabi Abasan" situates at Road No. 3 Sarada Pally near Tilak Sadhu More, Ward No. 37 within the jurisdiction Siliguri Municipal Corporation (hereinafter referred to as the "said corporation"), alleges unauthorized construction at the instance of the respondent no. 6. It has also been contended that based on permission accorded by the said corporation G+ storied building has been constructed by the respondent no. 6 and the flats were sold in favour petitioners.

But subsequently one tin shaded temporary structure was erected at the back side of the aforesaid premises at south west corner. According to the petitioners this erection of tin shade structure is beyond the sanctioned plan accorded by the said corporation. It has also been apprised to this Court that the said structure has been handed over to one "Saradapally Nagarik Samity".

President and

Secretary of the said samity are respondent nos. 7 and 8 in this writ petition.

It has been submitted on behalf of respondent nos. 7 and 8 that the learned advocate requires further instruction from his client which he could not take due to personal difficulty of the respondent no. 8. However, it is submitted that at present they are occupying the said tin shade structure.

Mr.

Deborshi Dhar, representing the said corporation submits that already a proceeding under Section 287 of the West Bengal Municipal Corporation Act, 2006 has been initiated based on the complaint made by the petitioners. However, the said proceeding has not yet been concluded.

In view of the submissions made on behalf of the parties and specially the submission made on behalf of the said corporation that there is initiation of proceeding under Section 287 the concerned authority of the said corporation is directed to bring the proceeding into logical conclusion within 10 (ten) weeks from the date of communication of this order after granting opportunity hearing to petitioners and respondent no. 6.

Since respondent nos. 7 and 8 are the occupiers of unauthorized construction it is settled position of law that they have got no right of

audience before the concerned authority of the said corporation at the time of consideration of the issue in connection with the proceeding initiated under Section 287. In this regard reliance has been placed on the judgment reported in (2006) 2 Cal LJ 574 (Sanjay Mehta & Ors. Vs. Kolkata Municipal Corporation & Ors.) The decision to be taken by the concerned authority said corporation shall be communicated to petitioners as well as respondent no. 6 within 7 (seven) days after taking such decision.

The writ petition stands disposed of.

There shall be no order as to costs.

Urgent photostat certified copy of the order, if applied for, be given to the parties, upon usual undertakings.

(Saugata Bhattacharyya, J.)