Sri Salil Chatterjee vs State of West Bengal and Others

Jayanta Kumar Biswas, J.—The petitioner in this writ petition has alleged that Howrah Zilla Parishad has not taken necessary action in spite of his complaint that the eighth and ninth respondents have erected unauthorised constructions.

The Zilla Parishad has filed an opposition stating in para 6 thereof that after making enquiry it detected that using the lands in question the eighth and ninth respondents erected unauthorised constructions. After hearing parties it has given a decision dated April 29, 2009 that in view of pendency of a civil suit to which it is a party the question whether the constructions should be demolished should be kept in abeyance till the decision of the Civil Court.

It is submitted that the eighth and ninth respondents could erect the offending constructions only after obtaining necessary permission from the Zilla Parishad according to the provisions of the West Bengal Town and Country (Planning and Development) Act, 1979, sections 45, 46.

The suit pending before the civil Court was filed by the mother of the eighth and ninth respondents, and the plaintiff therein has prayed for a decree declaring that the Zilla Parishad has no right to initiate any demolition proceedings or to demolish the constructions without giving any opportunity of being heard.

The admitted position is that in the pending suit the civil Court has not made any interim order restraining the Zilla Parishad from initiating any demolition proceedings or from demolishing the constructions, if it is found that they have been erected unauthorisedly. Under the circumstances, the question arises whether the Zilla Parishad could decide not to take any action on the basis of the petitioner''s complaint.

Counsel for the eighth and ninth respondents submits that since the other co-owners of the land using which the constructions in question have been erected have not been made party, this writ petition is hit by non joinder of necessary party; that, in any case, the writ petition filed alleging inaction on the part of the Zilla Parishad has lost its utility, once, after hearing the parties, the Zilla Parishad has given the decision dated April 29,2009 that the question of demolition of the constructions should be kept in abeyance till the decision of the Civil Court.

The decision dated April 29,2009 has been produced by the Zilla Parishad with its opposition, and I think for considering the question what relief, if at all, can be granted to the petitioner in this writ petition, the subsequent developments leading to the decision of the Zilla Parishad dated April 29, 2009 can be taken into consideration.

I do not find any merit in the argument that the writ petition is hit by non�joinder of necessary party. The admitted position is that the eighth and ninth respondents are also the persons responsible for erection of the constructions in question. In my opinion, when they have been made party to the writ petition, it cannot be said that it is hit by non-joinder of necessary party.

I am unable to accept the argument that because of the decision of the Zilla Parishad dated April 29, 2009 this writ petition has lost its utility. The petitioner''s cause of action for filing this writ petition was in the refusal on the part of the Zilla Parishad to discharge its statutory obligation. It is evident from the decision dated April 29,2009 that the cause of action is still in existence, because the Zilla Parishad has decided not to take any step in the matter until the decision of the Civil Court.

As I have already pointed out, in the pending civil suit the Court concerned has not made any interim order restraining the Zilla Parishad from initiating demolition proceedings and also from demolishing the constructions, if it is found that they have been erected unauthorisedly. When the Civil Court did not make any interim order, I wonder how the Zilla Parishad could do the job for the plaintiff in the suit. By injuncting itself the Zilla Parishad has virtually made an interim order in the pending suit. The way it has avoided the discharge of its statutory duty is ingenious.

For these reasons, I dispose of the writ petition ordering that after making necessary enquiries, giving the parties reasonable opportunity to adduce evidence, present their respective cases and also of hearing, and within ten weeks from the date of communication of this order, the Zilla Parishad shall give final decision in the proceedings in which the decision dated April 29, 2009 was given. The reasoned decision shall be communicated to all concerned without any delay: There shall be no order for costs.

Urgent certified xerox of this order, if applied for, shall be supplied to the parties within three days from the date of receipt of the file by the section concerned.