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2008 DIGILAW 355 (CAL)

Puspa Rani Shee v. Bluberia Municipality

2008-04-01

JAYANTA KUMAR BISWAS

body2008
Judgment :- (1) THE petitioners in this writ petition dated March 24th, 2008 are questioning the notices dated March 16th, 2008 issued under Section 218 of the West Bengal Municipal Act, 1993 and dated March 20th, 2008 issued directing them to remove a boundary wall erected and a gateway set up by them allegedly unauthorisedly. Both the notices were issued on behalf of the Chairman of Uluberia Municipality. (2) MR. Ghoshal, Counsel for the petitioners, contends that there was no reason to issue the notice dated March 16th, 2008 under Section 218 of the West Bengal Municipal Act, 1993. It is not the case of the municipality that the petitioners erected any building unauthorisedly. In such a case only the board of councillors of the municipality would have been competent to issue a notice under Section 218 that does not empower the chairman of a municipality to exercise any power conferred thereby. Under the circumstances, Mr. Mukherjee, counsel for the municipality, finds little to say in justification of the action complained of. I, therefore, hold that the notice dated March 16th, 2008 is liable to be quashed. (3) ACCORDING to Mr. Mukherjee, the notice dated March 20th, 2008 was issued under Section 184 of the West Bengal Municipal Act, 1993. I find that once again Mr. Ghoshal, who has cited Sri Bishnupada Palui and anr. v. state of West Bengal and Ors. , 2005 (2) WBLR 501 , is fully justified in contending that even if it is accepted that the notice was issued under section 184, it just cannot be sustained, since only the board of councillors of the municipality and not the chairman thereof, was competent to issue any notice or make any order in exercise of powers conferred by the provisions of Section 184. As a matter of fact, on this ground alone, the notice is liable to be quashed. (4) ACCORDING to the municipality, the impugned notices were issued, because, without first obtaining its written permission, the petitioners set up a gateway and thus created an obstruction on a public pathway by encroaching upon it. The petitioners have categorically disputed the correctness of this allegation. It is their case that though the Title Suit no. (4) ACCORDING to the municipality, the impugned notices were issued, because, without first obtaining its written permission, the petitioners set up a gateway and thus created an obstruction on a public pathway by encroaching upon it. The petitioners have categorically disputed the correctness of this allegation. It is their case that though the Title Suit no. 25 of 1988 and the Title Appeal No. 1 of 2006, filed by the first petitioner and others, were dismissed sustaining a technical plea taken by the municipality, findings of fact were recorded in both the judgments that the place concerned was not a public pathway as claimed by the municipality and other interested parties. Mr. Ghoshal has argued that so long as it is not found that the petitioners have erected any boundary wall or set up any gateway by encroaching upon any public pathway, no question of giving any direction to demolish the boundary wall or remove the gateway can arise. (5) IN view of the dispute, the question that has arisen is whether the municipality is empowered to make necessary investigation and record findings of fact for determining whether the petitioners have erected or set up anything by encroaching upon any public pathway. According to Mr. Ghoshal, in view of the findings of fact recorded by the competent civil Courts in the suit and appeal, there is no scope for the municipality to adjudicate the question. Mr. Mukherjee has joined issue by saying that in view of the provisions of Section 184 read with Section 166 of the West bengal Municipal Act, 1993, the board of councillors of the municipality is competent to make necessary investigation and adjudicate the question; and in my view, he is right in saying so. (6) THE provisions of Section 166 of the West Bengal Municipal Act, 1993 empower the board of councillors of a municipality to classify public or private street into arterial road, connecting road, passage, pathway, lane and by-lane and specify the width of each class in accordance with such rules as may be made in this behalf. (6) THE provisions of Section 166 of the West Bengal Municipal Act, 1993 empower the board of councillors of a municipality to classify public or private street into arterial road, connecting road, passage, pathway, lane and by-lane and specify the width of each class in accordance with such rules as may be made in this behalf. Section 2 (51) defines "public street" to mean any street, road, lane, gully, alley, passage, pathway, square or courtyard, whether a thoroughfare or not, over which the public have a right of way, and includes (a) the access or approach to a public ferry (b) the roadway over any public bridge or causeway, (c) the footway attached to any such street, public bridge or causeway, (d) the passage connecting two public streets, and (e) the drains attached to any such street, public bridge or causeway, and, where there is no drain attached to any such street, shall be deemed to include also, unless the contrary is shown, all land up to the boundary wall, all, hedge or pillar of the premises, if any, abutting on the street, or if a street alignment has been fixed, then up to such alignment. (7) SECTION 184 provides that the board of councillors of a municipality may, without notice, itself or by any officer authorised by it in writing in this behalf, remove, alter or otherwise deal with any structure, wall, hoarding, scaffolding, fence, rail, post, platform of other projection, obstruction or encroachment which has, without first obtaining its written permission, been erected or set up in, over, above or upon any public street, house-gully, sewer, drain, aquaduct, water-course or ghat. It is evident from the relevant provisions of the West Bengal Municipal Act, 1993 that the board of councillors of a municipality possesses the requisite power to classify a connecting road or a pathway into a public street. A passage connecting two public streets is also a public street. The board of councillors is also empowered to remove anything erected or set up on a public street. (8) I am therefore unable to accept the contention that the board-of councillors of the municipality in the present case is not competent to examine whether the petitioners have erected the boundary wall or set up the gateway in question encroaching upon any public street. (8) I am therefore unable to accept the contention that the board-of councillors of the municipality in the present case is not competent to examine whether the petitioners have erected the boundary wall or set up the gateway in question encroaching upon any public street. It is essentially a question of fact, and, in my opinion, the board of councillors of the municipality is competent to make necessary investigation and determine the question. Needless to say that the investigation process has to be a fair one, i.e. the persons who are likely to be affected, as the petitioners are, must get a fair opportunity to present their respective cases. This being the position, I think, on the facts of the case, it will be appropriate to give some clarificatory directions. (9) FOR these reasons, I dispose of the writ petition ordering as follows. The two impugned notices are hereby set aside. Nothing in this order shall prevent the board of councillors of the municipality from initiating appropriate proceedings for ascertaining whether the petitioners have erected the boundary wall and set up the gateway by encroaching upon any public street. In the decision making process, if proceedings are initiated, reasonable opportunity shall be given to the petitioners and any other person who may be affected by the decisions, to present their respective cases by adducing evidence and making submissions. While determining the question the board of councillors shall examine all evidence produced and adduced by the parties. The question of taking steps under Section 184 will be examined, if necessary, only after appropriate reasoned decision is given regarding the question whether the place in question is a public street. The decisions shall be communicated to all concerned immediately. There shall be no order for costs.