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2013 DIGILAW 73 (CAL)

BALLY MUNICIPALITY v. MONORANJAN GHOSH

2013-02-06

Murari Prasad Shrivastava, Pranab Kumar Chattopadhyay

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JUDGMENT : - Pranab Kumar Chattopadhyay, J. This appeal has been preferred assailing the judgment and order dated 3rd February, 2011 passed by a learned Judge of this court whereby and whereunder the said learned Judge allowed the writ petition after setting aside the order passed by the Board of Councillors of the appellant-Municipality with regard to revocation and/or recalling of the notice dated 12th March, 2009 issued under Section 218 of the West Bengal Municipal Act, 1993. 2. Going through the records we find that the Board of Councillors of the appellant-Municipality initially going through the spot enquiry report and considering the other relevant records was satisfied about the existence of the illegal construction at the premises in question. Therefore, the aforesaid notice under Section 218 of the West Bengal Municipal Act, 1993 was served upon the concerned persons namely, the respondent Nos. 6 and 7. By the aforesaid notice, said respondent Nos. 6 and 7 were directed to show cause as to why the unauthorised construction at the premises in question would not be demolished. 3. In answer to the said notice dated 12th March, 2009, detailed representations were submitted on behalf of the aforesaid respondents and in the said representations, aforesaid respondents specifically mentioned that no construction was made in violation of the building rules. The aforesaid respondents, however, admitted that a toilet has been constructed in the covered verandah only to maintain the hygienic condition of the building and surrounding areas. The said respondents in the aforesaid representations duly explained their conduct and requested the municipal authorities to recall and/or revoke the notice issued earlier under Section 218 of the West Bengal Municipal Act, 1993. 4. Considering the aforesaid representations of the private respondents and also on examination of the relevant records and specially in order to prevent environmental pollution, construction of toilet at the premises in question was allowed to remain by the municipal authorities and the Board of Councillors in its meeting held on 30th April, 2009 ultimately, decided to revoke and/or recall the aforesaid notice issued to the private respondents under Section 218 of the West Bengal Municipal Act, 1993. It is fact that the Board of Councillors of the appellant-Municipality in its meeting held on 30th January, 2009 passed a resolution recording their satisfaction about the existence of the illegal construction at the premises in question and decided to initiate proceedings under Section 218 of the West Bengal Municipal Act, 1993. 5. Considering the language used in a portion of the resolution, learned Single Judge was misled and treated the said resolution as the decision to demolish the unauthorised portion of the building in terms of Section 218 of the West Bengal Municipal Act, 1993, which is factually not correct. Section 218(1) of the West Bengal Municipal Act, 1993 is set out hereunder: “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 alternation 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 Councilors 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.” 6. In terms of Section 218, Sub-section (1) of the West Bengal Municipal Act, 1993, Board of Councillors should be satisfied at first about the erection of any building without any sanction plan or existence of any construction in breach of any provision of the Act. In the event, the Board of Councillors are satisfied about the existence of any illegal construction, then only after giving an opportunity of being heard to the owner of the building, shall make an order with regard to demolition and/or alteration of such illegally erected portion of the building. 7. In the present case, admittedly, the Board of Councillors was satisfied about the existence of unauthorised construction at the premises in question, which has been recorded in the minutes of the meeting held on 30th January, 2009 and therefore, issued direction for taking steps in terms of the provisions of Section 218 of the West Bengal Municipal Act, 1993. In compliance with the direction mentioned in the said resolution, subsequently, municipal authorities issued notice on 12th March, 2009 under Section 218 of the West Bengal Municipal Act, 1993 to the concerned persons namely, the respondent Nos. 6 and 7 herein. 8. The aforesaid respondents duly replied to the said notice narrating the facts specifically stating that no construction was made in violation of the building rules although the said respondents admitted the construction of a toilet by converting a covered verandah in order to maintain hygenic condition in the building as well as in the locality. 9. The Board of Councillors thereafter, considered the aforesaid explanations submitted by the respondent Nos. 6 and 7 and arrived at the conclusion that the existence of the two-storied building and covered verandah in the ground floor have been mentioned in the assessment records of the municipality for the years 1988 to 2003-04. The existence of the aforesaid two-storied building and the covered verandah at the ground floor were, therefore, admitted by the appellant-municipality. However, the municipal authorities found that the tile shed was converted into asbestos shed, which the Board of Councillors considered not violative of any Rule of the municipality. 10. The existence of the aforesaid two-storied building and the covered verandah at the ground floor were, therefore, admitted by the appellant-municipality. However, the municipal authorities found that the tile shed was converted into asbestos shed, which the Board of Councillors considered not violative of any Rule of the municipality. 10. In the present case, we find that co-sharers are fighting legal battles in various courts as a result whereof, it was very difficult for the respondent Nos. 6 and 7 to construct any toilet at the occupied portion of the building and the said private respondents, under compelling circumstances, constructed the toilet only to maintain hygienic condition in the building and its surrounding areas, which the Board of Councillors also admitted. In such circumstances, Board of Councillors, in their wisdom, decided not to proceed further in terms of the provisions of Section 218 of the West Bengal Municipal Act, 1993 and therefore, decided to recall the impugned notice dated 12th March, 2009 issued under Section 218 of the West Bengal Municipal Act, 1993. The aforesaid decision was taken by the Board of Councillors in its meeting held on 30th April, 2009. 11. The learned Single Judge being misled by the language of the proceedings recorded in the minutes of the meeting held on 30th January, 2009 erroneously came to the conclusion that the subsequent decision of the Board of Councillors in its meeting held on 30th April, 2009 was a decision by exercising appellate power under Section 218(3) of the West Bengal Municipal Act, 1993 which the said Board of Councillors could not exercise. 12. There is no doubt that the Board of Councillors has no power to decide any appeal preferred from its earlier order. In the present case, however, no appeal has been preferred by the respondent Nos. 6 and 7 before the Board of Councillors. The Board of Councillors after being satisfied about the existence of unauthorised construction decided in its meeting held on 30th January, 2009 to initiate proceedings for demolition and/or alteration of the building and in terms of Section 218 of the West Bengal Municipal Act, 1993, notice was issued by the appellant-Municipality after granting reasonable opportunity of being heard to the concerned parties namely, the respondent Nos. 6 and 7 herein. The respondent Nos. 6 and 7 duly replied to the said notice. 13. 6 and 7 herein. The respondent Nos. 6 and 7 duly replied to the said notice. 13. Thereafter, the Board of Councillors upon considering the explanations of the affected party namely, the respondent Nos. 6 and 7 herein and also considering its own records decided not to proceed further in terms of the aforesaid notice issued under Section 218 of the West Bengal Municipal Act, 1993 and recalled the said notice. 14. Therefore, it is clear that the Board of Councillors in its meeting held on 30th April, 2009 did not decide any appeal since no appeal was even preferred by anybody. The said Board of Councillors only decided the fate of the notice issued to the respondent Nos. 6 and 7 herein under Section 218 of the West Bengal Municipal Act, 1993 which the Board of Councillors is supposed to do after issuing the notice to the concerned party/parties. 15. The learned Single Judge erroneously held that the Board of Councillors in its meeting held on 30th April, 2009 actually decided the appeal preferred from the earlier order dated 30th January, 2009 which cannot be accepted specially when no appeal was preferred by any party. The respondent Nos. 6 and 7 were simply granted a reasonable opportunity of hearing in terms of Section 218 of the West Bengal Municipal Act, 1993 and the said private respondents duly answered to the said notice issued under Section 218 of the West Bengal Municipal Act, 1993 by the appellant-Municipality. 16. In the aforesaid circumstances, we are unable to hold that the appellant-Municipality altered its earlier decision in the subsequent meeting held on 30th April, 2009 by exercising any power under Section 218(3) of the West Bengal Municipal Act, 1993. 17. For the aforementioned reasons, we are unable to affirm the decision of the learned Single Judge. Therefore, we set aside the impugned judgment and order under appeal passed by the learned Single Judge and allow the appeal without awarding any costs. Let urgent xerox certified copy of this order, if applied for, be given to the learned Advocates of the parties on usual undertaking.