Calcutta High Court (Appellete Side)
Amit Chandra & Ors vs Panihati Municipality & Ors on 12 September, 2014
Author: Debasish Kar Gupta
Bench: Debasish Kar Gupta
1
12.09.2014
srm
W.P. No. 19648 (W) of 2014
Amit Chandra & Ors.
Versus
Panihati Municipality & Ors.
Mr. Pratik Dhar,
Mr. Ritwik Pattanayak,
...For the Petitioners.
Mr. Prity Bhusan Chakraborty,
Mr. Bikash Kumar Chattopadhyay
...For the Municipality.
Mr. Prantick Ghosh
...For the Respondent Nos.5 & 6.
Let affidavit‐in‐opposition filed by the respondent Nos.1, 2, 3 and 4 and replies thereto filed by the petitioners be kept on record.
This writ application is directed against an order/notice passed by the respondent No.3 under Memo No.PM/Genl./OSD/Illegal Const./2014‐15/87/1 dated April 23, 2014. The above order/notice was served upon the petitioners invoking the provisions of Section 218 of the West Bengal Municipality Act, 1993 (hereinafter referred to as the said Act, 1993) for demolition of building and removal of the illegal construction from the encroached area of common passage within one month from date and failure of which the appropriate steps would be taken by the respondent‐Municipality. 2 It is submitted by Mr. Pratik Dhar, learned Senior Advocate appearing on behalf of the petitioners, that the above notice cannot be sustained in law on the following grounds:
(1) Though a reply of a communication dated February 27, 2014 was submitted by the petitioners it was alleged in the impugned communication that no explanation in reply to the same had been given by the petitioners.
(2) The communication dated March 8, 2014 was not served upon the petitioners at any point of time. Therefore, the question of giving explanation to the above communication does not arise.
(3) The above order was passed under the provisions of Section 214 of the said Act, 1993. The above section prescribes the entire procedure for demolition of unauthorised construction but from the above notice nothing is evident in the impugned notice/order to give opportunity to the petitioners with regard to the alleged unauthorised construction.
(4) The above order was passed without jurisdiction in view of the admitted fact that the above section prescribes the procedure to be adopted by the Board of Councillors of a Municipality in a case of unauthorised construction. Admittedly the impugned order was passed under the provisions of Section 218 of the said Act but it was passed by the 3 respondent No.3 having no jurisdiction to take any action under the above provisions.
(5) A civil suit bearing Suit No.476 of 2013 is pending before the 1st Court of Civil Judge, Senior Division at Barasat and the alleged encroached area concerned is the subject matter of declaration of title and ownership of that area concerned. Therefore, the action of the Municipality to take a decision with regard to the title, ownership of the area under reference was bad in law during the pendency of the above suit.
It is submitted by Mr. Prantick Ghosh, learned Advocate appearing on behalf of the respondent Nos.5 and 6, that assuming but not admitting that the impugned notice cannot be sustained in law. There is no bar and/or impediment to proceed afresh in the matter by the respondent‐Municipality notwithstanding the fact of pendency of the suit under reference. According to him, the subject matter involved in the above suit has no nexus with the encroached area in respect of which the impugned order was passed.
In compliance of the order dated August 22, 2014, the Secretary of Panihati Municipality is present before this Court today with relevant records.
Mr. Prity Bhusan Chakraborty, learned Advocate appearing on behalf of the respondent‐Municipality, submits, on instruction, that the impugned order/notice was issued in exercise of power conferred under sub‐section (5) of 4 Section 218 of the said Act, 1993. According to him, this writ application is premature and a final decision has yet to be taken by the Municipality adhering to the other provisions of the above section.
I have heard the learned Counsel appearing for the respective parties as also I have considered the facts and circumstance of this case.
Considering the records of the respondent‐Municipality produced before this Court I find no record that the reply of the petitioners dated March 5, 2014 submitted by the petitioners in respect of the notice dated February 27, 2014 was taken into consideration. It appears that the claim of the respondent No.3 that there was no explanation with regard to the above notice dated February 27, 2014 is not correct. No material is produced to show that the notice dated March 18, 2014 was served at any point of time upon the petitioners.
With regard to the jurisdiction to pass the impugned order the provisions of Section 218 of the said Act, 1993, the above provisions are quoted below:
"218. Order for demolition or alteration of buildings in certain cases. - (1) If the Board of Councillors is satisfied -
(a) that the erect of any building -
(i) has been commenced without obtaining sanction or premises under the law, or
(ii) is being carried on or has been completed otherwise than in accordance with the particulars on which such sanction or 5 permission was based, or after such sanction or permission has been lawfully withdrawn, or
(iii) is being carried on or has been completed in breach of any provision contained in this Act or in the Schedule or in any rules or regulations in this behalf, or
(b) that any building or projection exists in violation of any condition, direction or requisition lawfully given or made under this Act or the rules or the regulations made thereunder, or
(c) that any material alteration of, or addition to, any building has been commenced or is being carried on or has been completed in breach of any provision contained in this Act or the Schedule or in any rules or regulations in this behalf, it may, after giving the owner of the building a reasonable opportunity of being heard, make an order directing that such erection, alteration, addition or projection, as the case may be, or so much thereof as has been executive unlawfully, be demolished or altered and, upon such order, it shall be the duly of the owner to cause such demolition or alternation to the satisfaction of the Board of Councillors within such period as may be fixed in this behalf. In default, such erection, alteration, addition or projection, as the case may be, may be demolished or altered by the Board of Councillors at the expense of the said owner.
(2) The procedure relating to the opportunity of hearing to be given to the owner of the building under sub‐section (1) shall be such as may be prescribed.
(3) An appeal against an order made by the Board of Councillors in this behalf o shall lie with the [Court having jurisdiction]. [(4). * * *].
(5) Notwithstanding anything contained in the foregoing provisions of this section or elsewhere in this Chapter, if the Chairman‐in‐Council is of opinion that immediate action is necessary in respect of any building being constructed, or any work being carried on, in contravention of the provisions' of this Act, it may, for reasons to be recorded in writing, cause such building or work to be demolished forthwith."
After considering the above provisions, I find that the Board of Councillors of a Municipality is entitled to proceed under the provisions of the 6 above section. The respondent No.3 had no jurisdiction to take any decision or to issue any notice in absence of a decision taken by the Board of Councillors of a Municipality. No material is produced before this Court to show that any decision was taken in the matter by the Board of Councillors with regard to the issue involves in this writ application.
For determining the rival claim of the petitioners and the respondent‐ Municipality as to whether the impugned communication is an order or a notice the last paragraph of the impugned notice/order is quoted below:
"You are therefore given this notice u/s 218 of the W.B.M. Act, 1993 for demolition of building and removal of the illegal construction from the encroached area of common passage within 1(one) month from this date, otherwise legal action will follow."
After considering the above paragraph, I have no hesitation to hold that it was not a notice to show cause or a notice for giving an opportunity of hearing to the petitioners. This was an order for removal of illegal construction on the encroached area.
After considering the subject matter involved in the above suit, I find that the same was filed by the petitioners for a declaration of right and title over "B" and "C" schedule property of the premises under reference. After considering the sketch map of "B" schedule property which is a part of the plaint of the above suit, I find that "B" schedule property was the common 7 passage. Therefore, after considering the order impugned, I find that it does not lie on the mouth of the respondent Nos.5 and 6 that there is no nexus with the impugned order and the title suit under reference. The right and title of an immovable property can be determined in a civil suit. Admittedly, the above suit is still pending. Therefore, the impugned order is liable to be set aside on that ground.
In accordance with the provisions of Section 218 of the said Act, 1993, there was an obligation on the part of the respondent‐Municipality to give reasonable opportunity of being heard to the petitioners. No material is produced before this Court to show that the above formality has been complied with.
In view of the discussions and observations made hereinabove, the impugned order dated April 23, 2014 is quashed and set aside.
The respondents are restrained from proceeding further in the above matter till the disposal of the suit under reference.
This writ application is, thus, disposed of.
There will be, however, no order as to costs.
Urgent photostat certified copy of this order be supplied to the parties, if applied for, subject to compliance with all necessary formalities.
( Debasish Kar Gupta, J. )