Calcutta High Court (Appellete Side)
Pratima Ghosh & Ors vs State Of West Bengal & Ors on 12 January, 2018
Author: Shekhar B. Saraf
Bench: Shekhar B. Saraf
1
74 January WP 17812 (W) of 2015
AN 12, 2018
Pratima Ghosh & ors.
-vs.-
State of West Bengal & Ors.
Mr. Uday Sankar Chattopadhyay
Mr. Santanu Maji
Ms. Snigdha Saha
... for the petitioner
Mr. Mrinal Kanti Ghosh
... for the respondent No. 8
Mr. Subhashis Bandopadhyay ... for the Municipality Affidavit of service filed be kept with the records. This is a writ petition under Article 226 of the Constitution of India challenging the order passed on June 29, 2015 allegedly by the Board of Councillors of Burdwan Municipality.
Counsel on behalf of the writ petitioner submits that by a letter dated June 16, 2015, he was informed that a meeting of the Board of Councillors of the Burdwan Municipality shall take place at 4.20 P.M. and on reaching the Office of Board of Councillors at 4.20 P.M., he came to learn that the Board of Councillors had already disposed of the matter ex parte.
Counsel on behalf of the respondent No. 8, who had initially filed the complaint against the writ petitioner, appears and submits that the writ petitioner has illegally constructed a shop on a land that is characterized as a Doba (pond). He, accordingly, justifies the order passed by the Board of Councillors dated June 29, 2015. 2 Counsel on behalf of the Board of Councillors submits that the order was passed ex parte as no one appeared on behalf of the writ petitioner. However, the learned counsel for the Municipality is unable to explain the haste in which the order was passed and why the representations made by the writ petitioner dated July 6, 2015 were not addressed.
From a copy of the letter dated July 6, 2015 from the Chairman, Office of the Burdwan Municipality, it seems that an order/resolution had been passed by the Board of Councillors in its meeting dated June 29, 2015. The said resolution is annexed to the letter.
On perusal of the resolution sheet dated June 29, 2015, it is seen that the signature is that of the Chairman of the Municipality only who has signed on behalf of the Board of Councillors. The above resolution is one that has been passed ex parte and does not reflect the due process that has to be followed as none of the Board of Councillors have signed the same, except the Chairman.
In any event, counsel on behalf of the Municipality submits, power of the Board of Councillors has been delegated to the Chairman as per Section 20A of the West Bengal Municipalities Act, 1993 (hereinafter referred to as "the Act of 1993") and he is authorized to act solely on behalf of the Board of Councillors.
The above submission that the Chairman has been authorized as per section 20A of the Act of 1993 to act solely on behalf of the Board of Councillors was not backed by any such resolution. Council on behalf of the municipality did not produce any resolution that would authorize the Chairman to order demolition as 3 per section 218 of the Act of 1993. In any event, it is the Court's understanding that the provisions of the Act of 1993 do not envisage that the power under section 218 may be exercised by the Chairman alone without a resolution of the Board of Councillors unless the same is done under section 218(5) in respect of emergency situations. Reference may be made to the Division Bench judgment of this Court in Sri Priya Brata Maity -v- State of West Bengal reported in 2000 (1) CLJ 175 [Coram : Mr. Justice Satyabrata Sinha and Mr. Justice Samarendra Nath Bhattacharjee].
Relying on the above Division Bench judgment, Jyotirmay Bhattacharya, J. (as he then was) in Madan Mohon Pal and Anr. -v- State of West Bengal and Ors. Reported in 2007 (4) CHN 394 held that the Chairman alone cannot exercise the power of demolition. The relevant portion of the above judgment are set out below:
"26. Section 218(1) of the said Act authorises the Board of Councillors to pass an order of demolition if the Board of Councillors after giving a reasonable opportunity of hearing to the owner of the building is satisfied that the erection of any building was made in contravention of any of the provisions as contained in Clauses (A), (B) and (C) thereunder. The expression "may make an order directing that such erection, alteration, addition or projection, as the case may be or so much thereof as has been executed unlawfully, be demolished or altered", appearing in section 218(1) makes it clear that a discretion has been left in the hands of the Board of Councillors either to pass an order of 4 demolition or to pass an order of retention and/or alteration in suitable circumstances.
27. In any event, in view of the Division Bench decision of this Court in the case of Priya Batra Maity -vs.- State of West Bengal, reported in 2000 (1) CLJ 175, this Court holds that the Chairman alone cannot pass any order of demolition of any construction, even if it is found to be illegal and/or unauthorized and/or without any sanctioned plan.
28.Section 218(5) of the said Act has an overriding effect in as much as it provides that notwithstanding anything contained in the foregoing provisions of section 218 of the said Act 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."
In the present facts, it is apparent that no hearing was granted to the writ petitioner and the order was passed ex parte and in haste. Secondly, the resolution of the Board of Councillors clearly contains only the signature of the Chairman and no other member. Such an order cannot be sustained.
In view of the above, the order passed on June 29, 2015 allegedly by the entire Board of Councillors is set aside and a direction is given to the Board of Councillors to give another 5 opportunity to the writ petitioner and the private respondent No. 8 to present their case on the said issue and, thereafter, pass a reasoned order. Needless to say, the Board of Councillors shall examine the nature of land as per the porcha/record of rights, the sanctioned building plan, if any, and, thereafter, pass the reasoned order. The above exercise is to be carried out within a period of six weeks from the date of communication of this order by the Municipality. The respondent authorities shall communicate the said reasoned order within a period of two weeks from passing of the said order.
With the above direction, this writ petition is disposed off.
Urgent photostat certified copy of this order, if applied for, shall be given to the parties as expeditiously as possible on compliance of all necessary formalities.
(Shekhar B. Saraf, J.)