Item No. 04
In the High Court At Calcutta
Constitutional Writ Jurisdiction
Appellate Side
28.03.2024
Ct-24
AGM
WPA 8703 of 2024
Manju Devi Shaw & Ors.
v.
State of West Bengal & Ors.
Mr. Prosenjit Mukherjee.
Mr. Ayan Banerjee.
Mr. Joy Chakraborty.
Mr. Ranjit Malakar.
… for the petitioners.
Mr. Pritam Chowdhury.
Mr. Gaurav Banerjee.
… for the State.
Ms. Mekhla Sinha.
Ms. Malabika Roy Dey.
… for the Howrah Zilla Parishad.
Mr. Animesh Paul.
… For the private respondent.
Order of demolition dated 2nd May, 2023 passed by
the District Engineer, Howrah Zilla Parishad is
impugned in the present writ petition. Specific grievance
of the petitioners is that the District Engineer does not
have the jurisdiction to pass the order of demolition.
Reliance has been placed on Section 160A of the
West Bengal Panchayat Act, 1973 as amended.
Learned advocate representing the private
respondent submits that the District Engineer
considered the matter in compliance of the direction
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passed by this Court on 02.01.2023 in WPA 25580 of
2020 (Sri Ajit Pandey –Vs- The State of West Bengal &
Ors.).
On a perusal of the aforesaid order it appears that
the Court was pleased to direct the competent authority
of the Howrah Zilla Parishad to proceed in accordance
with law and reach the issues raised by the petitioners
to its logical conclusion.
The order further mentions that if any
unauthorised construction is detected, the authority
concerned shall act and proceed as per Rule 28 of the
West Bengal Panchayat (Gram Panchayat
Administration) Rules, 2004.
Section 160A of the West Bengal Panchayat Act,
1973 as amended mentions that where a new structure
or new building or any addition to any structure or
building is being or has been erected or made, as the
case may be, in contravention of the provisions of sub-
section (1), the matter shall be heard by a Hearing
Officer who shall preferably be a retired senior
Government Officer with the experience of having
worked as a Magistrate and shall be appointed in the
Zilla Parishad by the State Government. The Hearing
Officer shall, after giving the owner of such building an
opportunity of being heard, submit his recommendation
to the Executive Officer of the Zilla Parishad. The
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Executive Officer of the Zilla Parishad shall take decision
for demolition of the building or a portion of the
building, as the case may be, by the owner within such
period as may be specified in the order and in default,
issue direction to the Sub Divisional Officer concerned to
effect the demolition and to recover the cost thereof from
the owner as a public demand.
The aforesaid provision has been inserted by the
West Bengal Panchayat (Amendment) Act, 2017 and the
same came into effect on and from 09.11.2017.
In the present case, the construction in question
took place after the amendment came into effect and,
accordingly, the provision of Section 160A ought to have
been followed at the time of passing the order of
demolition. Aforesaid provision does not permit the
District Engineer to pass any order of demolition.
It appears that the District Engineer, Howrah Zilla
Parishad did not have the authority to pass such order.
On this ground alone, the impugned order of
demolition is liable to set aside and is, accordingly, set
aside.
The authority as specified under Section 160A is
directed to take steps in the matter in accordance with
law to deal with the unauthorized construction
complained of by the private respondent.
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Steps shall be taken in the matter at the earliest
but positively within a period of four months from the
date of communication of this order.
The parties shall be afforded reasonable
opportunity of hearing at the time of consideration of the
representation filed by the private respondent alleging
unauthorised construction.
The parties will be at liberty to rely upon all
documents in support of their individual stand before
the competent authority.
All consequential steps shall be taken by the
competent authority in accordance with law.
The writ petition stands disposed of.
Urgent certified copy of this order, if applied for,
be supplied to the parties expeditiously, on compliance
of usual legal formalities.
(Amrita Sinha, J.)