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2009 DIGILAW 452 (CAL)

Shri Ananda Mohan Halder v. STATE OF WEST BENGAL

2009-06-29

JAYANTA KUMAR BISWAS

body2009
Judgment :- (1) The petitioner in this writ petition dated September 17, 2004 is questioning the order of Chairman, Haldia Municipality dated September 2, 2004, Annexure P6 at p.28, directing him to demolish his two storied construction. The Chairman stated in the order that the construction was unauthorized. (2) One Bidhu Bhusan Karan, claiming to be Member, Chairman in Council, Haldia Municipality, has filed an opposition dated March 17, 2005 on behalf of the Municipality. It has not been stated in the opposition that the Chairman made the order dated September 2, 2004 on the strength of any decision taken by the Board of Councilors according to the provisions of Section 218 of the West Bengal Municipal Act, 1993. (3) No provision of the West Bengal Municipal Act, 1993 empowers the Chairman of a Municipality to initiate proceedings for deciding whether a construction is unauthorized and hence liable to be demolished. The power has been conferred on the Board of Councilors. According to the provisions of Section 218, the Board of Councilors is to initiate appropriate proceedings and give decision after affording reasonable opportunity to the person responsible for erection of the unauthorized construction to defend himself and to present his case. It is evident that the Chairman made the impugned order without any jurisdiction. The fact that before making the order the Chairman gave the petitioner a hearing cannot make the order lawful and valid. The Chairman did not have any power to make it. Hence it is liable to be set aside. (4) For these reasons, I allow the writ petition and order as follows. The impugned order dated September 2, 2004 is hereby set aside. All steps taken on the basis of the order shall be deemed to be quashed. Nothing in this order shall prevent the Municipality from initiating appropriate proceedings under appropriate provisions of the Act, if there are good grounds to initiate proceedings with respect to the petitioners construction in question. There shall be no order for costs. (5) Urgent certified xerox of this order, if applied for, shall be supplied to the parties within three days from the date of receipt of the file by the section concerned.