Calcutta High Court (Appellete Side)
Anima Guha @ Chatterjee vs The Board Of Councilors Of Katwa ... on 12 December, 2023
Author: Shampa Sarkar
Bench: Shampa Sarkar
December 12, 2023
Sl. No.13
Court No.19
s.biswas/srm
CO 1 of 2023
Anima Guha @ Chatterjee
vs.
The Board of Councilors of Katwa Municipality & Anr.
Mr. Rajdeep Bhattacharya
Mr. Debapratim Guha
Mr. Diptendu Banerjee
... for the petitioner
Mr. Tapas Kumar Bhattacharya,
Mr. Aviroop Bhattacharya
... for the opposite party no.1
Mr. Uttiya Ray
Mr. Arnab Mandal
.. for the opposite party no.2
The revisional application has been filed
challenging an order dated December 5, 2022 passed
by the learned Civil Judge (Junior Division), 1st
Court, Katwa in Misc. Appeal No.01 of 2022. The
miscellaneous appeal arises out of an order of
demolition. The petitioner is the person responsible
for the unauthorized construction. The Misc. Appeal
No.01 of 2021 was filed challenging an order of
demolition passed by the Chairperson, Board of
Administration, Katwa Municipality dated February
18, 2021.
In compliance with the order of this court,
passed in WP 3223 (W) of 2019, the Katwa
municipality invoked the provision of Section 218 of
the West Bengal Municipal Act, 1993 (hereinafter
referred to as 'the said Act'), in respect of the illegal
construction made by the petitioner. The petitioner is
a resident of Katwa, Khepa Kalipara. The Sub-
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Assistant Engineer, Katwa Municipality was directed
to take up the work of demolition of the illegal
construction on the first floor of Holding No.57, with
the assistance of the police, lady police, Sanitary-in-
Charge and the Engineering Department.
Mr. Bhattacharya, learned advocate for the
petitioner, submits that the order impugned suffers
from the following irregularities:
a) The learned court did not take into
consideration that the prayer for
regularization should have been decided on
the facts of the case.
b) Mere repair and construction of bath and
privy should not be treated as unauthorized
construction as they could be retained upon
payment of fine.
c) The learned court failed to appreciate that
there was a specific order of the Division
Bench of this court to consider the aspect of
retention of such construction.
d) The Katwa Municipality did not pass a
reasoned order, explaining why the
construction was unauthorized.
e) The Board of Directors did not have any
power to direct demolition.
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Mr. Roy, learned advocate appearing on behalf
of the opposite party no.2, that is, the person who
complained of such alleged illegal construction,
submits that the Board of Administrators issued the
second order, for implementation of an earlier order
of demolition, which was passed in consonance with
the principles of law and upon hearing the parties.
Such order of demolition was passed by invoking
Section 218 of the said Act, pursuant to a direction
of this court in a writ petition filed by the opposite
party no.2. The municipal authorities had filed the
report in the form of affidavit in the said writ
proceeding before this court. A learned Single Judge
of this court, upon perusal of the affidavit, held that
when there were findings of unauthorized
construction, the municipal authorities should
continue to discharge their duties as enjoined by the
law and take necessary steps. On the direction of
this court, the parties were heard and an order of
demolition was passed. The authorities failed to
implement such order of demolition as the opposite
party no.2 once again filed another writ petition. In
the writ petition, being WP 3223 (W) of 2019, a
learned Co-ordinate Bench of this court directed the
municipal authorities to invoke Section 218 of the
said Act, against the illegal construction made by the
petitioner. On the basis of such direction, the
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subsequent order of the Chairperson, Board of
Administrators, Katwa Municipality was passed.
Mr. Tapas Kumar Bhattacharya, learned
advocate for the Municipality submits that from the
very beginning, the unauthorized construction had
been detected. The construction was not a minor
deviation. The authority should not exercise
discretion, by allowing either retention or
regularization. Substantial construction had been
done, without permission from the authorities. It is
further submitted that the learned court below had
taken into consideration all the aspects as also the
law applicable and passed the order with elaborate
reasons.
Considering the contentions of the parties, this
court finds that there is no dispute with certain
admitted facts.
a) A complaint was received by the municipality
with regard to the unauthorized construction
of the petitioner
b) The matter came up before this court in a
writ petition being WP 13160 (W) of 2017.
c) Such writ petition was disposed of by the
learned Single Judge on July 16, 2018, inter
alia, holding that the report in the form of
affidavit as called for by the court, indicated
that the municipality had found
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unauthorized construction. Thus, the
municipality was directed to invoke the
provisions of Section 218 of the Act, within a
period of fortnight and to make an endeavour
to dispose of the same within a period of
eight weeks thereafter.
d) The nature and the extent of unauthorized
construction was kept open by the
municipality to decide.
e) There is a clear finding that the report of the
municipality 'spoke of unauthorized
construction'.
f) Basing on such report, a notice was issued
in favour of the petitioner to appear before
the municipality on July 16, 2018 and to
show cause as to why the alleged
construction will not be demolished under
Section 218 of the said Act. After conclusion
of the hearing, a demolition order was
passed with regard to the second storey on
the property in question, on August 20,
2018.
g) The order was challenged in WP 18471 (W) of
2018 and the learned Single Judge disposed
of the matter on September 28, 2018 with
liberty to the petitioner to take recourse to
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the provisions of Section 218(3) of the said
Act within a period of seven days.
h) The petitioner failed to avail of the
opportunity of filing an appeal against the
order of demolition dated August 20, 2018.
i) As the municipal authorities failed to take
steps for demolition of the said construction,
the opposite party no.2 filed WP 3223 (W) of
2019. Such writ petition came up before this
court and the application was disposed of by
another learned Single Judge, directing the
municipality to issue notice upon the
petitioner and take steps to demolish the
construction within a period of two weeks.
The relevant portion of such judgment of this
court of the learned Single Judge is quoted
below:
"In the said conspectus, this order
directs the municpal authorities to
immediately issue a notice to the
private respondent no.4 and 5
asking them to demolish the unauthorised construction within two weeks.
In the event the private respondents fail to comply with such notice, the municipal authorities shall take expeditious steps to implement the order of demolition dated 20th August, 2018, in accordance with law within a period of two weeks thereafter.
With the above observations and directions, this writ application is disposed of."
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j) Accordingly, the order was passed by the Chairperson, Board of Administrators, Katwa Municipality dated February 18, 2021, by which demolition of the unauthorised construction was directed.
k) The order was challenged in a writ petition being W.P. No.3223 (W) of 2019 and an interim stay was granted with liberty to the petitioner to prefer an appeal.
l) Challenging such order of stay, the opposite party No.2 preferred an appeal being MAT 320 of 2021. The said appeal was disposed of by directing the appellate authority to dispose of the appeal within eight weeks and the parties were directed to cooperate and not seek unnecessary adjournments. The order impugned was passed thereafter. Coming to the reasonings given by the learned court below, the fact of unauthorised construction is established. The learned court analysed the law and came to the finding that in the absence of the Board of Councillors, the Board of Administrators could discharge its function. That the nature of construction required a sanction. That the petitioner could not produce any paper to establish that only repair works were undertaken and no construction had been made. On the contrary, the municipal authorities had urged 8 before the learned court that there was construction on the first floor which was totally unauthorised and which was not in the nature of repair.
The factual aspects have been elaborately discussed by the learned court and this Court under Article 227 of the Constitution of India, cannot sit as a court of appeal to analyse and re-appreciate evidence.
The learned court also applied the law available and there does not appear either any error of jurisdiction or error apparent on the face of record. It further appears that the learned court below considered the different judgments of the Hon'ble Apex Court with regard to regularisation and was of the definite finding that regularisation, in the absence of any rule was not permissible and the court of law could not direct the authority to perform such act, which would be in violation of law.
Under such circumstances, the order impugned does not call for any interference.
Accordingly, the revisional application is dismissed.
The municipality will act and perform its duties, in accordance with law.
There shall be no order as to costs. Parties are directed to act on the basis of the server copy of this order.
(Shampa Sarkar, J.)