HOTEL SEA GULL Vs. STATE

JUDGEMENT

(1.) PURSUANT to the order of the Hon'ble supreme Court, the matter has been listed and as suggested and agreed by both sides and as per directions of the Division Bench of this Court, the master is taken up for final hearing.

(2.) IT appears from the materials on record that the writ petitioners viz. , the partners of the business,under the name and style M/s. Hotel Sea Gull at digha in the district of Midnapore have come to this court seeking the relifs viz. , (a) for issuance of a writ of mandamus commanding the respondents concerned to act in accordance with law and to rescind, recall and/or withdraw the notice (Annexure 'b' to the writ petition) and to withdraw the police picket and permit the petitioners to raise construction as per the sanctioned plan, (b)issuance of a writ in the nature of certiorari directing the respondents to produce the records of the case so that on perusal of such records the notice under Section 54 of the Act (Annexure 'b') and illegal order of stopping of construction may be set aside quashed and/or conscionable justice may be done between the parties, (c) for issuance of a Rule Nisi in terms of prayers (a)and (b), (d) for issuance of any other appropriate writ, order and/or direction; (e) praying for making the Rule absolute after hearing the causes shown, if any, (f) for passing such other or further order or orders as the Court may seek fit and proper and (g) praying for a grant of an interim order restraining the respondents from making any disturbance in the construction work of the petitioner and also directing the respondents to withdraw the police pickets immediately and not to give any effect or further effect of the notice (Annexure b) till the disposal of the application and/or Rule.

(3.) IT is stated in details that in terms of the sanctioned building plan granted by the appropriate authority the petitioners started to develop the existing building by raising further floors above the existing construction with two floors. The respondent No. 2, Executive Officer, Digha Planning Authority, midnapore, issued a notice under Section 54 of the Town and Country planning Act by Memo No. 238/xxx-24/dpa/92 dated 27. 7. 92 directing the petitioners to discontinue further construction of the building in the lands situated on plot No. 240 (1) in Mouza Gobindabasan and further informed the petitioners that if the construction is not suspended forthwith the respondents will be compelled to remove the workmen from the site and/or arrange for removal of the unauthorised construction as per the provisions of the Act. Immediately after the issuance of the said notice, the petitioners were served another notice in connection with Misc. Case No. 151 of 1992 from the Court of the Sub-divisional Executive Magistrate, Contai, where from it would appear that the respondent No. 2 reported that the petitioners are about to commit breach of the peace in connection with the starting of the illegal construction of the hotel building without prior permission of the Digha Planning Authority and the petitioners were asked to appear before the said Magistrate and to show cause on 25th August, 1992, as to why the proceedings under Section 144 of the Code of Criminal Procedure should not be drawn up. It is placed on record that the Town and Country Planning Act has not been given any retrospective effect and the acts and/or cause to have been done by the respondents are not lawful and there is a thing in Section 54 of the said Act which would authorise the respondent No. 2 to stop construction of the building which is being carried on as per the plan sanctioned by the Panchayet which is the competent authority. It is stated further that the petitioners have completed up to the roof level and they have spent huge amount of money to secure the building materials and they would be wasted unless the petitioners are directed to complete the construction in terms of the sanctioned plan. Upon all those facts, as stated, the petitioners have sought for the reliefs, as indicated above, on the grounds that the Town and Country Planning Act does not permit the respondents to challenge the acts of the petitioners to raise construction strictly in terms of the sanctioned plan.