A Gram Panchayat cannot issue a demolition notice under section 23(6) of the Panchayat Act without providing an opportunity for a hearing to the landowner. Additionally, the Gram Panchayat cannot rely on section 25(2) of the Panchayat Act to justify the demolition of an unauthorized structure unless it can be established that the structure is causing obstruction or inconvenience to the public.

Anindita Roy Saraswati, J.

1. The petitioner Bidhan Nagar-1 Gram Panchayat has approached this Court under Article 227 of Constitution of India against the order dated 21.08.2010 in Misc. Appeal No. 1 of 2010 passed by Civil Judge, Senior Division, Siliguri allowing thereby the injunction application filed by the plaintiff/opposite party and directing both the parties to maintain status quo in respect of nature and character of suit land till disposal of the suit. The fact of the case is that the plaintiff initiated the Title Suit No. 103 of 2008 before the Civil Judge, Junior Division, Siliguri praying for decree of declaration, permanent injunction and other consequential relief. According to the plaintiff, he is the owner of the suit plot measuring 0.01 decimal and is in possession and the same. Plot No. 3711 belongs to one Nirapada Mallik who constructed the pukka building on the said land which is adjacent to the plaintiffs' land. As the plaintiff has some dispute with him for which he threatened the plaintiff by taking help of Gram Panchayat Pradhan to protect his own interest. The plaintiff made a temporary Goomty Ghar for business purpose with tin set covering 72-square feet on that land. The Pradhan of the Gram Panchayat took the matter on his official capacity and issued a notice being Memo No. 31579/08/2009 dated 26.06.2008 directing the plaintiff to demolish the structure. It is the case of the plaintiff that the Pradhan cannot issue such notice without hearing him as per the relevant position of Panchayat Act. The plaintiff accordingly prays for an order of injunction before the Trial Court.

2. It reveals from the record that the Civil Judge, Junior Division, Siliguri on the first instance though passed an order of interim injunction in favour of the plaintiff but after contested hearing of the said application rejected that application with an observation that plaintiff has suppressed the material fact and has not come before the Court with clean hand.

3. However, being aggrieved and dissatisfied with the said order and the plaintiff as appellant preferred an appeal before the District Judge, Darjeeling which was ultimately heard by the Civil Judge, Senior Division, 1st Court, Siliguri, i.e. Misc. Appeal No. 1(2)of 2010. After contested hearing the Misc. appeal No. 1, was allowed on contest and the 1st Appellate Court, set aside the order passed by the learned Civil Judge, Junior Division dated 22.12.2009 passed an order of injunction directing the parties to maintain the status quo in respect of the nature and character of the suit land till the disposal of the suit.

4. Learned 1st Appellate Court in his order discussed all the documents filed by the parties as well as the decisions referred by the parties and mainly discussed the decision reported in AIR (1997) Guj 64 on which learned Court for the defendant relied a lot and came to the findings that the plaintiff has stronger and prima facie came to go in trial. The question of balance of convenience and inconvenience also supports the case of the plaintiff.

5. Be that as it may the learned Advocate for the petitioner submitted that the learned 1st Appellate Court was not at all justified in passing injunction order in favour of the plaintiff/opposite party who created the nuisance due to unauthorise construction erected on the road and the same cause obstruction t o the shop owners adjacent to the road. According to him a road will be construct ed through the suit land under Pradhan Mantry Gram Sarak Yojana Scheme for which the land in question was acquired by the Siliguri Mahakuma Parisad but the plaintiff/opposite party suppressed all that material facts before the Lower Court.

6. Learned Advocate for the opposite party drew my attention to some copy of the document to prove that the plaintiff is in possession of the suit property. He also filed copy of rent receipt and khatians in support of his such case. He further argued that by the notice dated 02.06