Sailesh Malik vs State Of West Bengal & Ors

Abhijit Gangopadhyay, J

In this writ application the petitioner has prayed for recalling, withdrawal and cancellation and for not giving any effect of the orders dated 25th April, 2013 to 31st July, 2013 passed by the District Magistrate and Collector South 24-Parganas including one survey report in connection with compensation for damage of the residential house in the Mouza Mamudpur in the District of South 24-Parganas.

The orders of the District Magistrate impugned in the writ application i.e. orders dated 25th April, 2013 to 31st July, 2013 is in pursuance of the order of this Court dated 5th March, 2013 in W.P. No. 3720 (W) of 2013 (Sailesh Malik -Versus-the State of West Bengal & Ors).

In the order dated 5th March, 2013 passed in W.P. No. 3720 (W) of 2013 the Hon'ble High Court directed the District Magistrate, South 24-Parganas, to consider and dispose of the prayer of the petitioner dated 11th October, 2013 as contained in annexure P-6 of the connected writ application i.e. W.P. No. 3720 (W) of 2013 in accordance with law after granting opportunity of hearing.

Therefore, while deciding this application assailing orders of the District Magistrate in respect of the representation dated 11th January, 2013, the representation of the petitioner dated 11th January, 2013 is required to be seen first which is annexure P-16 of the present writ application.

The representation dated 11th January, 2013 (hereinafter after referred to as the said representation) was in respect of non-payment of compensation for damage of the residential house of the petitioner in the aforesaid Mouza. The petitioner got the plot of land and the structure standing thereon by way of a deed of gift dated 18th May, 1981 executed by his father. In the year 2003, for supply of arsenic free water, pipe line was laid by the Public Health Engineering Department of Government of West Bengal wherefor an area of 259 sq. ft. was occupied by the Government of West Bengal which was later acquired and in the year 2012 an amount of Rs. 68,178/- (Rupees Sixty eight thousand one hundred seventy eight) was paid to the petitioner which the petitioner received.

His new claim is that, due to the works of laying down of the pipe line through his plot of land his residential house was damaged and he claims compensation for rebuilding a new structure by demolishing the old structure.

With this grievance he filed the last writ application being W.P. No. 3720 (W) of 2013 and by order of this Court the said representation was heard and considered by the District Magistrate and a final order dated 31st July, 2013 has been passed rejecting the prayer made in the representation dated 11th January, 2013 filed by the writ application.

In the present writ application the writ petitioner pleaded the very simillar case as has been made out in the representation dated 11th January, 2013. Why the orders of the District Magistrate prior to the final order dated 31st July, 2013 has been challenged is not understood as there is no specific pleading in the writ application assailing those orders. Therefore, those orders are not put under this Court's judicial scrutiny.

The petitioner also filed one supplementary affidavit affirmed on 4th September, 2019 annexing therewith a survey report of the District Engineer of South 24-Parganas Zilla Parishad. The District Magistrate while passing his final order dated 31st July, 2013 had considered the said survey report of the said Engineer as it was before him.

The respondent Nos. 6 & 7 being the District Magistrate and the Special Land Acquisition Collector affirmed affidavit-in-opposition which was not filed before the Court though copy of the same was served upon the writ petitioner. The writ petitioner produced a copy of the said affidavit-in-opposition of the above mentioned respondent affirmed on 25th August, 2014 as none appeared for the State at the time of hearing. In the said affidavit-in-opposition and the supplementary affidavit of the petitioner as aforesaid the same survey report of the District Engineer of the said Zilla Parishad has been annexed. The said survey report is reproduced hereinbelow:

"As per Memo No. LA/Law cell/ 1462 dated 08.05.2013 of District Magistrate & Collector, South 24-Parganas, proper detailed survey on the plot No. 324 of Mouza- Mamudpur, P.S. Bishnupur, South 24-parganas was conducted on 14.05.2013 in presence of petitioner Shri Sailesh Malik and Assistant Engineer, Sub-Division-II under South 24-parganas Water supply Division-I PHE Dte. During survey the following observations were made:

Building was constructed in the year 1997. For construction of the same, no sanction was accorded from any competent authority.

Pipe line was laid 6ft. away from the building and along the length of building for supply of drinking water in the year 1997.

Apparently it appears that there is a settlement in floor but not in foundation. This may be due to poor workmanship at the time of construction or lack of maintenance during the period.

Grills in the outer veranda buckled. This is due to failure of lintel beam as if foundation settled there should be cracks. In the roof which is not found. So it is evident that buckling of veranda grills are due to failure of lintel beam, not due to failure of foundation.

There are so many hair cracks and horizontal cracks in the walls which never reveal that this is due to settlement of foundation. As due to settlement of foundation, vertical cracks appear in the wall.

In ceiling, many chunks of concrete fallen down which shows the poor workmanship.

From the above observations, it can be concluded that the damage in the building of the petitioner is not due to the laying of pipe line".

The writ petitioner filed affidavit-in-reply affirmed on 12th September, 2019 annexing therewith copy of a plan of proposed first, second and third floor of a building for which the petitioner has claimed compensation. Such plan was prepared, as appears from the copy of the plan, in March 1997. The petitioner has contended in the said affidavit-in-reply that the observation of the District Magistrate in his final order dated 31st July, 2013 is incorrect as to failure to produce the sanctioned plan of the building.

The respondents have denied and disputed the allegations made by the petitioner and have stated that the damage caused to the building was due to poor workmanship at the time of construction and for lack of maintenance and not for laying of the water-pipe-line.

Same stand is found in the report of the District Engineer which has been quoted above.

From the above allegations and counter allegations it is evident that whether the building was damaged due to laying of the water-pipe-line or for poor workmanship is wholly a disputed question of facts. I have noted that such allegation of damage caused to the property in the year 1997 has been made subject matter of a litigation in 2013 i.e. 10 years after the alleged damage caused. Such claim is a stale claim. The petitioner's 1st letter to the authority claiming money for repair and protection of his dwelling house was on 30th July, 2003 (at page 51 of the writ application).

The petitioner has referred to two judgments in support of his monetary claim for compensation for damage caused to the building. The cases are reported in AIR 1993 SC 1960 (Smt. Nilabati Behera alias Lalita Behera -versus- State of Orissa and others) and AIR 1997 SC 610 (D.K. Basu -versus-State of West Bengal).

Both the matters are related to violation of Fundamental Right due to the custodial death. Here in this case I have not found violation of any Fundamental Right of the petitioner for which compensation can be awarded by the writ Court.

The two cases referred to by the petitioner are not at all applicable factually or otherwise to the present case.

The District Magistrate has passed his order considering, inter alia, that the building was constructed in the year 1997 without any sanction of competent authority which has been mentioned in the District Engineer's report dated 20th May, 2013.

The petitioner was asked by the District Magistrate to produce the sanctioned plan of the said building but he failed to produce the same during hearing which appears from the order recorded by the District Magistrate. This has been specifically recorded in the final order of the District Magistrate dated 31st July, 2013.

It is now a guessing game as to how the petitioner has produced sanctioned plan through his affidavit-in-reply affirmed on 12th September, 2014 and it is not understood why the sanctioned plan was not disclosed in the writ petition itself affirmed in August 2013 when according to the petitioner the plan was sanctioned in the year 1997.

This Court has serious doubt, from the attending circumstances of the case, about the said building plan produced by the petitioner at a much belated stage in this Court as an annexure of his affidavit-in-reply. Failure to produce it before the District Magistrate at the time of hearing before him or as an annexure of the writ application when, at the material point of time i.e. while filing the writ application, the observation of the District Magistrate as to non-production of sanctioned building plan was clearly within the knowledge of the petitioner makes the whole episode of having a sanctioned building plan a murky affair. I have noted that the survey was made by the District Engineer in the presence of the petitioner on 14th May, 2013. It appears that on the date of the survey also the building plan was not shown or relied on by the petitioner and it is not the case of the petitioner that on the date of the said survey the petitioner produced the sanctioned plan. The petitioner produced the survey report by way of the said supplementary affidavit but no pleading has been made therein denying and /or disputing the observation made in the survey report that there was no building plan sanctioned by any authority. Such acts of the petitioner only strengths the doubt as to the building plan. The petitioner cannot rely on the building plan at this stage after avoiding ample opportunity earlier to produce the same.

For the reasons as aforesaid I do not find any merit in the writ application and the same is dismissed however, without any order as to costs.

The two connected applications have already been infructuous and are dismissed.