Calcutta High Court (Appellete Side)
(Disposed Of) vs The State Of West Bengal & Ors on 24 April, 2017
Author: Harish Tandon
Bench: Harish Tandon
1
24.04.2017 WP 453 (W) of 2017
Court No. 02
Item No. SL-05
snandy
Aslema Bibi @ Asloma Bibi
(DISPOSED OF)
Vs.
The State of West Bengal & Ors.
Mr. Hiranmoy Bhattacharya, Advocate
Mr. Kingsuk Mondal, Advocate
......for the Petitioner
Mrs. Ajeya Mitra, Advocate
Mr. Ashok Nandy, Advocate
......for the Private Respondents
Mr. Sustanta Pal, Advocate ......for the State Mr. Subhasis Bandopadhyay, Advocate ......for the Municipality The short point involved in the instant writ- petition is whether the Chairman of the Burdwan Municipality is competent to pass an order for demolition of the illegal construction under the provisions of the West Bengal Municipal Act, 1993.
Admittedly a complaint was lodged by the private respondents with the municipality alleging the unauthorized and illegal construction made by the petitioner at holding no. 38, Mouza - D.N. Mitra Road, Ward No. - 32, within the jurisdiction of Burdwan Municipality. Since the said complaint was not attended by the appropriate authority, a writ- petition being WP 23980 (W) of 2014 was filed before this court.
By an order dated August 26, 2014 the writ- petition was disposed of directing the competent authority of the Municipality to dispose of the aforesaid representation of the private respondents by passing a reasoned order in accordance with law after affording an opportunity of hearing to the respective parties. The impugned order is passed by the Chairman for and on behalf of the Board of Councilors of the said municipality which according 2 to the petitioner is bad, illegal and violative of the provisions contained under Section 218 of the said Act.
Before proceeding to deal with the aforesaid point, it would be relevant and profitable to quote Section 218 of the said Act as under:-
218. Order for demolition or alteration of buildings in certain cases.-- (1) If the Board of Councillors is satisfied --
(a) that the erection of any building --
(i) has been commenced without obtaining sanction or permission 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the particulars on which such sanction or permission was based, or after such sanction or permission has been lawfully withdrawn, or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 executed unlawfully, be demolished or altered and, upon such order, it shall be the duty of the owner to cause such demolition or alteration 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.
3Sub-section (1) of Section 218 expressly provides that the Board of Councilors after recording the satisfaction that the erection of the building has commenced without obtaining sanction or permission or is carried out in contravention of the provisions of the said Act, may order for demolition therefor after affording an opportunity of hearing to the person responsible therefor.
Such power is not vested upon the Chairman of the Municipality though he is one of the constituents of the Board of Councilors. It is a collective decision of the Board of Councilors under the aforesaid provision and the Chairman cannot individually act for and on their behalf. The identical point arose before the division bench of this court in case of Priyabrata Maity Vs. The State of West Bengal & Ors., reported in 2000 (1) CLJ 175 and is answered as under:
14. In this case the Board of Councilors did not pass the resolution of demolition. The Chairman and the two Councillors of whom one was local had no authority to pass any resolution under Section 223 of the West Bengal Municipal Act. Moreover, the requirements under the Act of sending notice under Section 223(1) of the Act both upon the owner and the tenant giving statutory time and obtaining an undertaking from the tenant/respondent or the owner were not complied with in utter violation of this section. The Chairman of Municipality having no authority or jurisdiction to pass the said order of demolition of the disputed premises carried out the order of demolition in hot haste the next day with the help of police. The Contai Municipality was made a party in writ-
petition but the Chairman did not care to verify the information of the tenant from the Court, nor had the patience to wait for the statutory period before executing their resolution, although they are the creatures of the statute.
The judgment of the division bench was relied 4 upon by the coordinate bench in case of Madan Mohan Pal Vs. The State of West Bengal & Ors. reported in 2007 (4) CHN 374 wherein it is held:-
25. With regard to the challenge regarding the legality of the impugned notice of the demolition being Annexure 'P-
15' to the supplementary affidavit, this Court holds that the Chairman alone is not competent to pass any order of demolition either under Sub-section (1) of Section 218 or under Sub-Section (5) of Section 218 of the West Bengal Municipal Act, 1993.
26. Section 218 (1) of the said act authorizes 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 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 case of Sri Priya Brata Maity V. 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.
In view of the above noted decisions, there is no quarrel to the proposition of law that the authority are required to act strictly in conformity with the provisions contained in the Act and if Section 218 empowers the Board of Councilors to pass an order for demolition, the Chairman alone cannot proceed and assume the jurisdiction in passing the order of demolition against the petitioner. Furthermore, it 5 appears in an earlier writ-petition the Hon'ble Judge was conscious of such position of law and directed the competent authority of the Municipality to dispose of the said representation.
The aforesaid expression must be construed in consonance with sub-section (1) of Section 218 of the Act and not in the manner as has been perceived by the Chairman in the impugned order. The Chairman is of the view that he is the competent authority of the Municipality overlooking and/or ignoring the provisions contained under sub-section (1) of Section 218 of the said Act.
The order impugned, therefore, cannot be sustained. The same is hereby quashed and set aside.
The Board of Councilors are directed to consider the representation of the private respondents strictly in terms of the provisions contained under sub-section (1) of Section 218 of the Act and it goes without saying that the entire exercise shall be completed within four weeks from the date of communication of this order.
With these observations, the writ-petition is disposed of. No order as to costs.
Urgent Photostat Certified copy of this order, be given to the parties, if applied for, on priority basis.
(Harish Tandon, J.) 6