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2016 Supreme(Cal) 959
IN THE HIGH COURT OF CALCUTTA
Biswanath Somadder & Sankar Acharyya
Tapan Kumar Dutta & Ors. – Appellants
Versus
The State of West Bengal & Ors. – Respondents
MAT 1704 of 2016 with CAN 9435 of 2016
Decided On : 21-09-2016
For the Appellant : Mr. Partha Chakraborty
For the Respondent: Mr. Sushovan Sengupta, Mr. Subir Pal, Mr. Gazi Faruque Hossain
The writ court does not have jurisdiction to adjudicate private disputes, and permission from the Gram Panchayat is not necessary for the erection of a boundary wall unless it is made of brick or cement and used for commercial or institutional purposes.
Headnote:BOUNDARY WALL - WEST BENGAL PANCHAYAT ACT - SECTION 23, RULE 19 - The court discussed the provisions of Section 23 of the West Bengal Panchayat Act, 1973, which deals with the control of building operations within the jurisdiction of a Gram Panchayat. It highlighted that no construction can take place without the previous written permission of the concerned Gram Panchayat. The court also referred to Rule 19 of the West Bengal Panchayat (Gram Panchayat Administration) Rules, 2004, which exempts certain structures from requiring permission, such as thatched structures, tin sheds, or tile sheds without brick walls, covering an area not exceeding eighteen square meters. The court emphasized that permission is not necessary for the erection of a boundary wall unless it is made of brick or cement and the bounded area is used or likely to be used for commercial or institutional purposes. The court concluded that the boundary wall in question was being constructed around a residential house and did not require permission from the Gram Panchayat. Therefore, the order of the Pradhan of the Gram Panchayat for demolition was set aside.
Fact of the Case:
The appeal arises from an order of the learned Single Judge refusing to interfere with the order passed by the Pradhan of the concerned Gram Panchayat. The dispute involved a boundary wall being constructed around a residential house.Finding of the Court:
The court held that the writ court is not the proper forum to adjudicate private disputes, and such disputes should be resolved by a competent civil court. The court also found that the boundary wall did not require permission from the Gram Panchayat as it was being constructed around a residential house and not for commercial or institutional purposes.Issues:
Whether the writ court has jurisdiction to adjudicate private disputes and whether the boundary wall required permission from the Gram Panchayat.Ratio Decidendi:
The court emphasized that private disputes should be resolved by a competent civil court and not the writ court. It also interpreted the provisions of Section 23 of the West Bengal Panchayat Act and Rule 19 of the West Bengal Panchayat (Gram Panchayat Administration) Rules, stating that permission from the Gram Panchayat is not necessary for the erection of a boundary wall unless it is made of brick or cement and used for commercial or institutional purposes.Final Decision:
The court set aside the order of the Pradhan of the concerned Gram Panchayat and allowed the writ petition. It clarified that the private rights of the parties can be adjudicated upon by a competent civil court.Based on the provided legal document, the key points are as follows:
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Jurisdiction of Writ Court: The court emphasized that the writ court does not have jurisdiction to adjudicate private disputes. Such disputes should be resolved by a competent civil court (!) (!) .
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Nature of Dispute: The dispute involved a boundary wall around a residential property, which is a private civil matter. The court clarified that the dispute was a private civil issue and not a matter for the writ court (!) .
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Applicability of Section 23 of the West Bengal Panchayat Act: The court examined Section 23, which governs building operations within Gram Panchayat jurisdiction, and noted that no permission is required for constructing a boundary wall around a residential house unless it is made of brick or cement and used for commercial or institutional purposes (!) (!) .
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Rules on Exemptions: The court referred to rules that exempt certain structures from permission requirements, such as small thatched or tin sheds, and clarified that permission is not necessary for boundary walls made of brick or cement around residential properties, provided they are not used for commercial or institutional purposes (!) (!) .
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Factual Findings: The court found that the boundary wall was being constructed around a residential house and did not serve a commercial or institutional purpose, thus not requiring permission from the Gram Panchayat. The factual narration in the previous proceedings supported this view (!) (!) .
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Authority of the Gram Panchayat: The court clarified that the Gram Panchayat or its Pradhan is not the proper authority to grant or refuse permission for boundary walls; instead, such authority lies with the Gram Panchayat itself (!) .
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Decision of the Court: The court set aside the order of the Single Judge and the order passed by the Pradhan for demolition, allowing the writ petition. It reaffirmed that private rights should be adjudicated by civil courts, not the writ court (!) (!) .
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Preservation of Private Rights: The court stated that the private rights of the parties are not interfered with and can be addressed in a civil court, emphasizing the civil nature of the dispute (!) .
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Final Disposition: The appeal and application for stay were disposed of, and the court ordered that the order of demolition be set aside, with the case remitted for civil adjudication of private rights if necessary (!) .
These points summarize the court's reasoning and decision, focusing on jurisdiction, applicable laws, factual findings, and the proper forum for resolving private disputes.
Biswanath Somadder, J.
1. By consent of the parties, the appeal is taken up for hearing by treating the same as on day’s list along with the application for stay.
2. Let the affidavit of service filed in Court today be taken on record.
3. The appeal arises out of an order dated 8th August, 2016, passed by the learned Single Judge. Perusing the said order, it appears that the learned Single Judge refused to interfere with the order passed by the Pradhan of the concerned Gram Panchayat. The Pradhan’s order – which appears to have been signed on 17th June, 2016 – was not exactly a suo motu order in exercise of his powers under the West Bengal Panchayat Act, 1973, but was an order passed pursuant to an earlier order of the writ Court in a previous writ proceeding initiated by the private respondent herein. The said writ petition, being WP 10469 (W) of 2015, was disposed of by an order dated 25th April, 2016.
4. Even a bare perusal of the pleadings reveals that a private dispute – purely civil in nature – has been brought into surface by the private respondent herein, not only in the earlier writ proceeding, but also in the proceedings before the Pradhan of the concerned Gram Panchayat, which gave rise to filing of the writ petition by the appellants herein that was ultimately dismissed.
5. The writ Court is not the proper forum to adjudicate upon private disputes between two or more parties. Such disputes are required to be adjudicated upon by a competent civil Court. That apart and in any event, the dispute which gave rise to the cause of action was essentially a boundary wall dispute existing between the appellants on one hand and the private respondent on the other.
6. In the facts of the instant case, section 23 of the West Bengal Panchayat Act, 1973 was sought to be invoked by the Pradhan of the concerned Gram Panchayat pursuant to the order dated 25th April, 2016, passed in the earlier writ proceeding. The scheme of section 23 of the West Bengal Panchayat Act, 1973, primarily deals with erection of any new structure or building or making any addition to any structure or building in any area within the jurisdiction of a Gram Panchayat. Control of such building operations is within the domain of the concerned Gram Panchayat and no construction can take place except with the previous permission in writing of the concerned Gram Panchayat. Erection of new structure or new building or addition to any structure or building or permission of the concerned Gram Panchayat, however, is subject to such rules as may be made by the State Government in this behalf. In this regard, it is noticed that the West Bengal Panchayat (Gram Panchayat Administration) Rules, 2004 provides, inter alia, rules regarding control of building operations under Chapter IV of the said rules. Rule 19 of the West Bengal Panchayat (Gram Panchayat Administration) Rules, 2004, reads as follows:
“19. Exemption from permission. ––(1) No permission of the Gram Panchayat shall be necessary for erection of any thatched structure, tin shed, or tile shed, without brick wall, covering an area not exceeding eighteen square meters, and such structure or shed does not cover more than three-fourth of the total area of the land including the land appurtenant thereto.
Provided that no permission of the Gram Panchayat shall be required for construction of houses under poverty alleviation programme.
(2) Permission of the Gram Panchayat shall not be necessary for repair of an existing structure or building unless – for erection of a boundary wall unless it is made of brick or cement and the bounded area is not kept as vacant land but it is used or likely to be used as stack yard or for any commercial or institutional purpose either on open space or by erecting temporary shed.”
(i) any structural change is involved, or
(ii) such repair brings any change in the existing covered area, or
(iii) such repair includes any addition of a projection from the existing structure or building groun
